Informal Opinion Number: 2021-13

Adoption Date: 2021

Rules: 4-4.4; 4-1.6; 4-3.4
Transactions with Persons Other than Clients
Client-Lawyer Relationship
Respect for Rights of Third Persons
Confidentiality of Information
Duties to Opposing Party and Counsel and Ethical Obligations to Follow Court Orders and Rules
Subject: Confidentiality; Respect for Rights of Third Persons
Summary: metadata

This informal opinion replaces informal opinion 2014-02, which is now withdrawn.

Question 1: Does Attorney have an ethical obligation regarding metadata in electronic documents sent by an opposing party or counsel to inform the sender that the document contains metadata of which the sender may or may not be aware?

Answer 1: Metadata embedded in an electronic document received by Attorney may constitute a document inadvertently sent, governed by Rule 4-4.4(b). Whether a lawyer “knows or reasonably should know” the inclusion of the metadata was inadvertent will depend on the facts and circumstances surrounding each transmission. If Attorney believes the metadata was inadvertently sent, Rule 4-4.4(b) requires Attorney to promptly notify the sender.

Question 2: Does Attorney have an ethical obligation regarding metadata in electronic documents sent by an opposing party or counsel to refrain from mining or reviewing and/or using the metadata?

Answer 2: According to Comment [3] to Rule 4-4.4, effective December 1, 2021, lawyers should see Rule 56.01(b)(9)(A)(ii). Interpretation of Rule 56.01(b)(9)(A)(ii) is a question of law and beyond the scope of this informal opinion.

Question 3: Does Attorney have an ethical obligation to make good faith efforts to prevent the inadvertent electronic transmission of embedded metadata to opposing party or counsel in the context of litigation?

Answer 3: Pursuant to Rule 4-1.6, Attorney must use reasonable care to ensure no information related to the representation of Attorney’s client is revealed without client consent, and this obligation requires Attorney to use reasonable care to ensure no confidential information is contained in embedded metadata. This may require “scrubbing” documents before transmitting them or using alternative methods of transmission. Efforts to protect confidential information must be exercised in light of Attorney’s obligation pursuant to Rule 4-3.4(a) not to unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal evidence. Removing metadata with evidentiary value before transmitting certain documents may constitute a violation of laws governing discovery and therefore violate Rule 4-3.4(a). This informal opinion does not render an opinion about the existence of discoverable evidence in particular metadata or about the effect on substantive legal privileges of the pre-transmission removal or lack of removal of metadata.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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