Metadata Fair Game in Texas?

In a recent opinion, the Texas bar panel adopted the minority view on metadata, which states that there is not an obligation to inform opposing counsel that he has sent a document containing metadata. Moreover, Texas rules do not prohibit searching for and  in extracting metadata from documents. Of the nineteen jurisdictions that have issued opinions with specific requirements regarding attorneys’ obligation when transmitting or receiving documents containing metadata, Texas is the third state to opine that its rules do not require notification to the sender of the document.

ABA Model Rule 4.4(b), provides that a lawyer “shall promptly notify the sender” after the receipt of “inadvertently sent” information about an electronic document; however, Texas has not adopted this part of the rule.  In fact, the Texas panel stated, “The absence of specific provisions in the state’s existing rules precluded it from following the lead of other committees that have found a duty to notify.”

Additionally, the Texas opinion indicates that the ethics rules “do not prohibit a lawyer from searching for, extracting, or using metadata” embedded in documents sent from opposing counsel. Currently, ten other state’s opinions forbid searching for or extracting metadata from the documents. On the other hand, two states allow lawyers to review readily accessible metadata, but note that lawyers may not use sophisticated forensic software to extract metadata from what is referred to as a “scrubbed” document. See e.g., Washington Informal Ethics Op. 2216; Oregon Formal Ethics Op. 2011-187 (2011, revised 2015).

The Texas opinion acknowledge other state opinions and notes that . lawyers may be subject to metadata restrictions if they are subject to the rules of other jurisdictions. Moreover, the Texas opinion cautions that the Texas Disciplinary Rules of Professional Conduct require a lawyer to “avoid misleading or fraudulent use of information the lawyer may obtain from the metadata.”

The Texas opinion highlights the importance of taking reasonable measures to protect client confidentiality in the realm of metadata. Texas notes that “reasonable measures” to the prevent the disclosure of confidential information in metadata depends upon the circumstances of the case and includes a review of   the sensitivity of the metadata revealed, the identity of the intended recipient, and other appropriate considerations.

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