David Hricik1

Embedded data is information, including metadata, that accompanies many common word processing files, but which is ordinarily not seen on the screen. Unless a lawyer removes embedded data from a file before sending the file to opposing counsel, the embedded data accompanying the file could reveal confidential or privileged information. The authorities disagree on whether the transmission of embedded data is either “inadvertent” or “dishonest” in terms of the disciplinary rules. This Article contends that transmission of embedded data should be at least presumptively inadvertent and that it is dishonest for a lawyer to actively look for embedded data.

Cite as 8 N.C. J.L. & Tech. 231 (2007) | Download PDF

I. The Inevitability of Inadvertent Transmission

Lawyers transmit both paper and electronic documents to opposing counsel and third parties every day. Obviously, lawyers have an obligation to take reasonable care to not disclose information to an opposing or third party that is privileged, confidential, or subject to work-product protection.2 Inadvertent disclosure of confidential information can harm the client by waiving any claim to the protected status of the information or by simply letting the cat out of the bag, harming the client regardless of whether the information is admissible at trial.3

However, despite the exercise of reasonable care, lawyers have continued and will continue to inadvertently transmit confidential information4 to an opposing or third party. Either they will fail to take appropriate technological safeguards,5 or those safeguards will fail despite the lawyer's best efforts. Accidents will happen.6

That is why many lawyers have found themselves in the position of having to determine how to respond when they inadvertently received a document from opposing counsel.7 Since perfection is unattainable, lawyers will continue to be put in this position notwithstanding the rise of technological “cures” to inadvertent transmission of embedded data.8

Because of recent advancements in communication technology, more documents are exchanged today than ever before. This recent proliferation of both electronic communications and electronic documents has dramatically increased the frequency with which mistakes can happen.9 Consequently, it is easier to make a mistake.10 Now it only takes the click of a mouse-an accidental “reply to all,” for example-to inadvertently transmit a privileged electronic file.11

In addition, unlike the paper they replace, electronic files that appear proper to send to opposing or third parties can contain “hidden” information that can, nonetheless, be confidential.12 A file created in Microsoft Word, for example, when viewed on a screen by defense counsel, may simply show a plaintiff's settlement offer. However, this file might contain “hidden” comments between plaintiff's lawyer and client that reveal direct or inferential information about their settlement strategies or “bottom lines.”13 Unless specific steps are taken to reveal it, the “hidden” information is typically not visible when the document is printed or when the document is viewed in the creating word processing program.14

Ultimately, not only are electronic documents more frequently transmitted, they are more easily misdirected. In addition, they can contain confidential information that is not visible either in the printed document or in the document as typically viewed on the computer screen. This Article addresses the ethical obligations of lawyers who, outside the context of document production,15 receive electronic files from opposing or third parties which contain embedded confidential information. It addresses a question that has split the bar: is it unethical to intentionally take steps to look “behind” the document to see the embedded data?