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