The State Bar Association of North Dakota Fall 2014 Gavel Magazine | Page 27

or walked around, the ethics opinion. That opinion addressed two
distinct situations: one, where a document was exchanged between
counsel and the document inadvertently contained track-changes
and second, where the same document was sent after the sending
lawyer attempted to “scrub” the metadata and the receiving lawyer
used forensic software to mine the metadata. 11 Neither example
involved documents exchanged in discovery. In fact, the Washington
ethics opinion recognizes “that in the context of discovery
production, where certain metadata may have evidentiary value, RPC
3.4(a) specifically prohibits a lawyer from ‘alter[ing], destroy[ing]
or conceal[ing] a document or other material having potential
evidentiary value[,]’ or assisting another person in doing so.”12
It seems the federal court case was more akin to the ethics
opinion’s second scenario where hidden data was attempted to
be obliterated and the recipient used forensic technology
to recover the data. Regarding the second scenario,
the Washington ethics committee concluded, “use
of special software to recover, from electronic
documents, metadata that is not readily accessible
does violate the ethical rules.”13 The conclusion was
based on rationale that software assisted metadata
mining would “contravene the prohibition in RPC
4.4(a) against ‘us[ing] methods of obtaining evidence
that violate the legal rights of [third persons]’ and would
constitute ‘conduct that is prejudicial to the administration of justice’
in contravention of RPC 8.4(d).” 14
The federal district court held that “[b]ecause it [SIC] their
actions had a legitimate purpose apart from the discovery of
privileged documents, [plaintiffs’] use of the hard drive as
alleged by [defendants] does not violate 4.4(a).”15 However, this
reasoning seemingly ignores the above-quoted portion of the

ethics opinion. The reasoning also arguably overlooks that portion
of the ethics opinion stating, “To the extent that efforts to mine
metadata yield information that intrudes on the attorney-client
relationship, such efforts would also violate the public policy of
preserving confidentiality as the foundation of the attorney-client
relationship.”16

North Dakota has neither case law nor an ethics opinion addressing
these subjects. In such circumstances, we typically look to outside
resources. In this instance, I encourage counsel to study both the
ethics opinions and the available court decisions before deciding on a
course of conduct.

Kyko Global, Inc. v. Prithvi Info. Solutions Ltd., No. C13-1034MJP, 2014 WL 2694236 (W.D. Wash. June 13, 2014)
Id. at *2 (citations omitted)
3
Id.
4
Id. ABA Model Rule of Professional Conduct 4.4 provides:
1
2

Rule 4.4 Respect For Rights Of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of
obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that
the document or electronically stored information was inadvertently sent shall promptly notify the sender.
Kyko, at *2
See Daniel J. Crothers, “Information Inadvertently Sent: Part I,” The Gavel, Nov. 2009 at 16-17, available at http://www.sband.org/data/gavelupfiles/nov09screen.pdf at pp.
16-17 and Daniel J. Crothers, “Information Inadvertently Sent: Part II,” The Gavel, Feb 2010 at 18-19 available at https://www.sband.org/UserFiles/files/pdfs/publications/
gavel/feb10Feb.pdf
7
Kyko at *2
8
Id. (citing Washington State Bar Ass’n Advisory Op. 2216 (2012))
9
Kyko at *2
10
Id.
11
Washington State Bar Ass’n Advisory Op. 2216 at 1
12
Id. at 1-2 (citation omitted)
13
Id. at 2
14I
d.
15
Kyko at *2
16
Washington State Bar Ass’n Advisory Op. 2216 at 2
5
6

FALL 2014

27