Ethical Hazards Posed by the Digital Age

1. Ethical Hazards Posed by the Digital Age Leslie A.T. Haley Sr. Asst. Ethics Counsel Virginia State Bar

2. Dangers of Technology • Attorneys make excuses for not learning good informational technology skills. . . . • I’m a technophobe • I’m technology challenged • I’m techno-illiterate • My VCR still flashes “12:00” since I bought it 10 years ago.

3. Dangers of Technology • What courts are saying: No excuses. You owe duties of competence and diligence. • You need to learn your client’s IT architecture as soon as possible. • Litigation holds • Duty to verify and monitor the hold • Duty to hire and consult with experts if you do not understand • Duty to scrub metadata • Duties re inadvertently transmitted info

4. Dangers of Technology • Duty to “Google:” Munster v. Groce, (Ind. App. 2005) (lawyer failed to use due diligence to obtain personal service on defendant; could have determined whereabouts using Google). • Duty to check MySpace, FaceBook, AdultFriendFinder and other online social networks.

5. Scope of Presentation     • Duty to scrub electronic documents for metadata; duty of attorney to mine or not mine opponent’s electronic documents for metadata    • Lawyer’s use of information or data obtained by client in violation of ECPA or other computer trespass laws    • Electronic file retention, storage, destruction, and delivery to client    • Ethical issues arising out of e-discovery: Qualcomm, Inc. v. Broadcom Corp.    • Unintended relationships: “Are you my lawyer?” Ethical duties owed to persons who communicate via lawyer’s website or Internet mail    • What should a lawyer do when an opponent mistakenly transmits electronic documents that contain privileged information?

6. Metadata

7. What is Metadata? • Metadata, by its nature, is a secondary class of data. Although commonly described as “data about data,” a more formal definition has been given as “evidence, typically stored electronically, that describes the characteristics, origins, usage and validity of other electronic evidence.”

8. What is Metadata? • Substantive metadata is the notorious version of metadata, which is responsible for some of the horror stories involving electronic documents. In one case, the Pentagon had posted a report online detailing an incident in which a U.S. soldier accidentally killed an Italian secret service agent in Iraq. Readers were able to access redacted, blacked-out information in the .PDF file by copying and pasting the confidential information into a Word document.

9. What is Metadata? • An adverse party was able to access a previous version of a document and learned that a suit by the SCO Group against DaimlerChrysler was originally intended for the Bank of America. • J. Brian Beckham, Production, Preservation and Disclosure of Metadata, 7 COLUM. SCI. & TECH. L. REV. 1, 2 (2006).

10. Amount of time spent with document open Original authors and editors Creation, access, modification dates Undo changes to reveal original document and/or changes made to it What It Can Disclose

11. General Metadata Fields

12. Common Metadata Fields

13. General Metadata Fields

14. Metadata • Some real examples from court papers filed by good law firms since 2005.

16. Who Ya Gonna Sue?

17. One Last Happy Thought

18. Sender’s Duties Recipient's Duties Why It Matters: Part 1

19. Sender’s Duties • RPC 1.6: Protect client confidential information • RPC 1.1: Provide competent representation

20. Microsoft Word Microsoft has patches Word Perfect Patches available Commercial software “scrubbers” WorkShare iScrub Others – ask/Google Adobe Acrobat PDF Some metadata persists except in Acrobat 8 Professional Paper Every Day: Reducing Metadata

21. Recipient’s Duties Is it unethical to look for metadata that might contain privileged or confidential information? If so, can’t look. RPC 8.4:Misconduct to engage in conduct involving “dishonesty, fraud, deceit or misrepresentation.”

22. Is transmission of metadata in a file like inadvertently faxing a privileged document? If so, then rules and cases that require notifying the sender could apply Recipient’s Duties

23. Recipient’s Duties ABA Model RPC 4.4(b): “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”

24. Recipient’s Duties • VA LEO 1702: Following ABA LEO 368, the Bar concludes that a lawyer receiving "inadvertently transmitted confidential documents from opposing counsel or opposing counsel's client" must return the documents. Although prohibiting a lawyer from reading an inadvertently transmitted document based on "boilerplate" notices on fax cover pages would "violate reality," once the lawyer recognizes a document as confidential, the lawyer "has an ethical duty to notify opposing counsel, to honor opposing counsel's instructions about disposition of the document, and not to use the document in contravention of opposing counsel's instructions."

25. Looking prohibited; notice required: NYSBA Op. 749 Ariz. Bar Op. 07-03 Dishonest to look Dishonest to look Notify of receipt Notify of receipt Florida Bar Op. 06-2Virginia? LEO 1702? Can’t look; Dishonest? Notify of receipt D.C.? Alabama State Bar Opinion Number: 2007-02 Dishonest to look Notify of receipt Can You Look? Must You Notify?

26. Can You Look? Must You Notify? Can look: ABA Op. 06-442 • Can view and use • Notification not decided Maryland Op. 2007-09 • Can view and use • No notification required Colo. Bar Op. 119 (2008) • Can view and use • No notification required

27. What Does This Mean? Can you look? Where do you practice? Must you notify? Where do you practice? - Do ethics rules include Rule 4.4(b)? - Does it apply? - What does it say? - Any case law?

28. Outgoing e-documents may contain embedded data Privilege review Substantive review Other side’s e-documents may contain it Why it Matters (Part 2)

29. Why it Matters (Part 2) • Rule 3.4 (a): A lawyer shall not obstruct another party's access to evidence or alter, destroy or conceal a document or other material having potential evidentiary value for the purpose of obstructing a party's access to evidence. A lawyer shall not counsel or assist another person to do any such act.

30. Why it Matters (Part 2) • Rule 3.4 (e): a lawyer shall not “. . . fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”

31. Why It Matters (Part 2) • Metadata is not explicitly addressed in the Federal Rules of Civil Procedure. The word “metadata” does not appear at all in the Rules, and appears only once in the Advisory Committee Comments to the Rules. However, despite efforts to the contrary, metadata is clearly included within the definition of “electronically stored information (ESI)” contained in Rule 34.

32. Why it Matters, Part 2 • The December 2006 Amendments to the Federal Rules added new provisions relating to the production of electronically stored information. Rule 34(b) allows the requestor to “specify the form or forms in which electronically stored information is to be produced.” Therefore, if the information contains metadata, the requesting party can specify that metadata be produced along with the primary data. The producing party in its “response may state an objection to the requested form for producing electronically stored information.” If it objects to the requested form, the producing party must also “state the form or forms it intends to use.”

33. Using Digital InformationObtained Unlawfully • RULE 4.4 Respect For Rights Of Third Persons • In representing a client, a lawyer shall not use means that have no 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. (emphasis added)

34. Unlawfully Obtained Information • Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons.

35. Unlawfully Obtained Information • A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. Va. Rule 1.2 (c).

36. Unlawfully Obtained Information • VA LEO 1786 (2004): Whether [the lawyer] can use the information will depend on the nature of the documents, the nature of the source of the information, the method used by the client to gather the information, and finally, whether the attorney directed the client to do so. The limited facts provided prevent the committee from opining on the issue other than to reiterate that the attorney can only use such information if doing so would not violate Rule 3.4(a) and Rule 4.4 The committee notes that Rule 8.4(a) precludes an attorney from violating the Rules of Professional Conduct “through the acts of another.” Thus, the attorney should not direct the client to obtain evidence via a method the attorney himself is ethically prohibited from using.

37. Electronic Files • May a lawyer require, as a condition of the representation, that the client’s file be kept in electronic format? • Yes, so long as the client's interests are not prejudiced by such a condition for representation. Va. LEO 1818.

38. Electronic Files • In determining what to destroy or retain in the client's file, the attorney should be mindful of the committee's recommendations in LEO 1305 that before destroying a client's paper file the lawyer should review that file to make sure that any documents that may be of continued use or benefit to the client only if they are maintained in paper form not destroyed. In deciding whether to destroy a paper document that was provided by the client to the lawyer, for example, the lawyer should consult with the client and obtain consent to destroy it, after it has been converted to an electronic document.

39. Electronic Files • Are e-mails and other electronic documents part of the “client’s file?” • Yes. A lawyer's clients have a presumptive right of full access to e-mails and other electronic documents in the lawyer's possession, but clients who request copies of those documents generally may be charged a reasonable fee for gathering and producing them. New York City Bar Ass'n Comm. on Professional and Judicial Ethics, Formal Op. 2008-1(July 2008).

40. File Retention/Destruction • Applicable Rules of Conduct: • Rule 1.4–Duty to inform/notify client regarding destruction of file or client property • Rule 1.6–Duty to protect client confidences and secrets while storing or disposing of client files or property.

41. File Retention/Destruction Other Considerations in Determining When to Destroy a Client’s File: • documents can now be imaged and stored electronically • statutes of limitations regarding claims by minors or other incapacitated clients and governmental entities. • contact professional liability insurer for guidance on file retention. • Keep detailed index of destroyed files.

42. E-discovery and Qualcomm

43. Qualcomm v. Broadcom • The Qualcomm case, tried in federal court in San Diego, involved allegations by Qualcomm that rival Broadcom infringed certain Qualcomm patents involving the coding of video files. Part of Broadcom’s response was a claim that the patents are unenforceable or waived because they improperly cover industry standards set by a body known as the JVT in a process in which Qualcomm participated.

44. Qualcomm v. Broadcom • Throughout discovery, pre-trial summary judgment motions, and at trial, Qualcomm disputed Broadcom’s argument. Qualcomm claimed that it did not participate in the JVT’s standards-setting activities until after May 2003, the month when the JVT issued the relevant video coding standard. But, at trial, a Qualcomm witness admitted that during his pre-trial preparation, 21 emails were pulled from his computer concerning Qualcomm’s JVT participation, and these were not produced in the litigation.

45. Qualcomm v. Broadcom • While preparing Qualcomm witness Viji Raveendran to testify at trial, attorney Adam Bier discovered an August 6, 2002 email to viji@qualcomm.com welcoming her to the avc_ce mailing list. Several days later, on January 14, 2007, Bier and Raveendran searched her laptop computer using the search term “avc_ce” and discovered 21 separate emails, none of which Qualcomm had produced in discovery. The email chains bore several dates in November 2002 and the authors discussed various issues relating to the H.264 standard.

46. Qualcomm v. Broadcom The Qualcomm trial team decided not to produce these newly discovered emails to Broadcom, claiming they were not responsive to Broadcom’s discovery requests.

47. Qualcomm v. Broadcom • This evidence led to the disclosure, four months after the trial, that Qualcomm had withheld as many as 46,000 documents, many of them emails, totaling more than 200,000 pages. These documents indicated that Qualcomm indeed had participated in the JVT standards-setting process as early as 2002.

48. Qualcomm v. Broadcom • At the conclusion of the trial, Judge Brewster further found that Qualcomm’s “counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial before new counsel took over lead role in the case on April 27, 2007.” He referred Broadcom’s Motion for Sanctions to Magistrate Judge Barbara Major.

49. Qualcomm v. Broadcom • Magistrate Judge Barbara L. Major held that both Qualcomm and six of its attorneys committed misconduct, in failing to conduct an e-mail search on obvious custodians on obvious terms on an issue that was obviously central to the case.

50. Qualcomm v. Broadcom • She ordered Qualcomm to pay over $8.5 million for Broadcom’s attorneys’ fees and other litigation costs (less costs ordered to be paid earlier), referred six lawyers on Qualcomm’s litigation team to the State Bar of California for investigation.