TAKING ADVANTAGE (OR NOT) OF CYBER-BLUNDERS: THE ETHICS OF METADATA MINING IN TEXAS

SHERYL A. FALK DONALD H. MAHONEY, III Howrey LLP 1111 Louisiana, 25th Floor Houston, TX 77002-5242

State Bar of Texas 21st ANNUAL ADVANCED REAL ESTATE DRAFTING COURSE March 4 -5, 2010 Dallas

CHAPTER 23

Sheryl A. Falk Of Counsel Howrey LLP 1111 Louisiana Street 25th Floor Houston, Texas 77002 713.787.7615

Sheryl Falk is Of Counsel in Howrey's Houston office. Ms. Falk specializes in civil litigation and arbitration. The breadth of her experience covers complex commercial litigation, breach of contract disputes, fraud litigation, securities arbitration, product liability, premises liability, and environmental contamination cases. Ms. Falk has served as trial counsel in state and federal cases. Ms. Falk has also handled electronic discovery matters in large state commercial litigation. She is certified in Computer Forensics.

Prior to entering private practice, Ms. Falk was an Assistant United States Attorney

Representative Highlights

 Bell v. Resinform, Inc. (Hechinger Home Quarters Builders Square. Successfully defended in trial against multi-plaintiff products liability claim involving plastic resin chairs. 270th Judicial District Court of Harris County, Texas - Judge Brent Gamble presiding.  DX Terminals, Ltd. v. Bayer Corporation . Successful trial resulting in $7.5 million verdict in breach of contract case. 152nd Judicial District Court of Harris County, Texas-Judge Ken Wise presiding.  Elvis Presley Enterprises v. Capece (The Velvet Elvis). Successful trial defending against Estate of Elvis Presley's claim of trademark infringement. U.S. District Court for the Southern District of Texas, Hon. Vanessa Gilmore presiding.  Industrial Information, Resources, Inc. v. Jason Berk . Successfully defended company against a $12 million dollar shareholder's derivative claim in arbitration.  Lyondell Petrochemical v. Louisiana Safety Systems. Defended against a $15 million dollar products liability claim arising out of petrochemical explosion blamed on a defective valve. After winning partial summary judgment, case settled. Chambers County, Texas. Admissions

Texas, 1992

Courts & Adjudicative Bodies

United States Court of Appeals for the Fifth Circuit United States District Court for the Eastern District of Texas United States District Court for the Southern District of Texas

Education

University of Houston Law Center (JD, 1991) University of the South (BA, 1988)

Taking Advantage (or Not) of Cyber-Blunders: The Ethics of Metadata Mining in Texas Chapter 23

TABLE OF CONTENTS

I. INTRODUCTION ...... 1

II. WHAT IS METADATA? ...... 1

III. SIGNIFICANCE OF METADATA FOR LAWYERS ...... 2

IV. ETHICAL RULES INVOLVED ...... 3

V. ETHICS OPINIONS ON METADATA MINING IN OTHER JURISDICTIONS ...... 4 A. New York ...... 4 B. Florida ...... 4 C. Alabama ...... 5 D. District of Columbia ...... 5 E. American Bar Association and Maryland ...... 5

VI. TEXAS ETHICS REGARDING IN ADVERTENT DISCLOSURES IN GENERAL ...... 5

VII. HOW A TEXAS ETHICS RULE ABOUT METADATA MINING MIGHT DEVELOP ...... 6

VIII. SOLVING THE PROBLEM OF METADATA PRODUCTION THROUGH TRANSPERANCY AND NEGOTIATING WITH OPPOSING COUNSEL ...... 6

IX. SUMMARY ...... 6

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inadvertent disclosures of metadata. See Philip J. Favro, A New Frontier In Electronic Discovery: Preserving And Obtaining Metadata, 13 B.U. J. SCI. & TECH. L. 1, 4-5 (2007) and sources cited therein. While these are instances of public disclosure of hidden metadata, inadvertent production of metadata by a client during a transaction or during litigation may have equally serious consequences for that client and for the recipient. The Professional Ethics Committee for the State Bar of Texas has not produced an opinion regarding the extent to which it is ethical for an attorney to review metadata in electronic information provided. Nor have the authors found any decision from a Texas court addressing the issue. This article will consider how the Texas rule may develop in the future.

II. WHAT IS METADATA?

Metadata is data that provides information about Taking Advantage (or Not) of other data. MICHAEL R. ARKFELD, ELECTRONIC Cyber-Blunders: The Ethics of DISCOVERY AND EVIDENCE 1-6 (2009). In the litigation context, “metadata is evidence, typically stored Metadata Mining in Texas electronically, that describes the characteristics, origins, usage, and validity of other electronic evidence.” CRAIG Sheryl A. Falk BALL, BEYOND DATA ABOUT DATA: THE LITIGATOR’S Donald H. Mahoney, III GUIDE TO METADATA 1 (2005). The term refers to a vast array of different types of data, which the United

States District Court for the District of Maryland has I. INTRODUCTION grouped into three categories in its Suggested Protocol Here is the scenario: your client’s competitor for Discovery of Electronically Stored Information. W. files, but does not serve, a complaint for trade secret Lawrence Wescott II, The Increasing Importance of misappropriation against your client in Texas court. Metadata in Electronic Discovery, 14 RICH. J. L. & The same day the attorney representing the TECH. 10, 2-5 (2008) (citing United States District Court competitor, in an effort to facilitate a quick settlement, for the District of Maryland, Suggested Protocol for sends you a courtesy copy of the complaint as a Discovery of Electronically Stored Information, at 25 Microsoft Word document attached to an email. (hereinafter Suggested Protocol). Should you or may you examine the complaint for The first category—“system metadata”—is data metadata potentially revealing evidence damaging for that is automatically generated from the computer and the competitor’s claim? What if you do examine it includes “author, date and time of creation, and the date and stumble across information that plainly is covered a document was modified.” Id. “Substantive by the attorney client privilege? metadata,” on the other hand is the data reflecting the This hypothetical is not far fetched. In 2004, the substantive changes to a document made by a user, e.g. SCO Group brought suit against DaimlerChrysler and tracked changes. Id. Finally, “embedded metadata” are Autozone for copyright infringement based on the use data entered into a document or file but not normally of Linux software. Stephen Shankland & Scott Ard, visible such as formulas entered into cells in an Excel Hidden Text Shows SCO Prepped Lawsuit Against spreadsheet. Id. BofA, http://news.cnet.com/Hidden-text-shows-SCO- Metadata attaches to all electronic files, and it can prepped-lawsuit-against-BofA/2100-7344_3-5170073. be a great source of information providing the who, html?tag=txt (Mar. 4, 2004). Journalists obtained a what, why, when, where and how information Microsoft Word version of the filed complaint and connected to a file. Different file formats have examined its hidden metadata. Id. They discovered different metadata. Some metadata information is from the metadata that SCO originally planned to readily viewable by the user, and other metadata name Bank of America as a defendant rather than requires extraordinary methods to view, such as DaimlerChrysler and that the venue of the suit was metadata retrieval software. changed from California to Michigan. Id. There are Microsoft Office documents like Word and Excel numerous other examples of embarrassing public contain a host of metadata. To view some of the 1

DM_US:23068656_1 metadata in an Office document, open one at your through requests made under TEX. R. CIV. P. 196.4. In computer, click on “File” and then “Proprieties.” The re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009); “General” tab reflects the metadata of the location of In re Honza, 242 S.W.3d 578 (Tex. App.—Waco 2008, the document, its date of creation, last access date, and pet. denied). Rule 196.4 requires a requesting party to last modification date. The “Summary” tab reflects “specifically request” production of electronic the metadata of the title, subject, author, manager, information and “specify” the form in which the data is company, category, keywords, and comments for the too be produced. Many problems related to the document. unintended production of metadata can be avoided by More metadata can be found in Microsoft Word attorneys merely paying attention to the format that the documents by clicking “View” and then “Markup.” requesting party selects. Some formats, such as TIFF This allows the user to view comments and tracked images, will have no metadata about the original changes that are hidden in the final printed out electronic document. document. Microsoft Excel spreadsheets have Native formats, on the other hand, will have additional metadata including hidden equations, metadata. So a competent attorney, upon receiving a document revisions, the name of your computer, the request specifying native format documents, should name of the hard drive where the work book is saved immediately plan for a review of the metadata and comments. associated with responsive documents. Alternatively, A picture file, known as a jpeg file can have the other side may not be interested in receiving any metadata attached which tells you information such as metadata, in which case the producing attorneys can who took the photo, on what type of camera, the date, “scrub” it from the electronic documents they produce. time, and last access date. Likewise, the Federal Courts have ruled that “when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order. “ Williams v. Sprint/United Mgmt Co., 2005 WL 2401626 (D. Kan. Sept. 29, 2005). The information contained in metadata can be of significant benefit in litigation to an attorney who understands metadata and knows how and where to look. Because of the automatic nature of its generation, These are just a few examples of metadata. metadata showing the author of a particular document, Metadata fields vary by type of original data. the time and reason for its creation, and the location Metadata can provide a wealth of information about where it was stored can be invaluable for authenticating electronic documents and data not readily obtainable documents. Philip J. Favro, A New Frontier In from any other source. However, electronic evidence Electronic Discovery: Preserving And Obtaining must be handled carefully, because metadata is fragile. Metadata, 13 B.U. J. SCI. & TECH. L. 11-12 (2007). Certain metadata can be destroyed simply by opening Metadata about the document’s history and edits are a file. The act of opening a file can operate to change also highly valuable in establishing that a document is the file’s last access date and time. The timing of genuine, rather than modified. Id. And, of course, accessing a file could be an important piece of metadata can provide valuable substantive admissions evidence to preserve in a trade secret case for by an opponent. Id. Yet, the ordinarily hidden nature example. If a user opens a Word document, changes of metadata and the fact that it is usually not intended to information and then saves the file, it will update both be reviewed by the recipient raises the question of the system and the file metadata (last saved date, whether it is ethical for attorneys to review it and to author). Metadata can be lost or damaged if proper what extent. steps are not taken to maintain its integrity. Outside of litigation, a lawyer might gain an advantage by mining metadata contained in a draft III. SIGNIFICANCE OF METADATA FOR contract provided by the other party to a transaction the LAWYERS lawyer is negotiating. For instance, a lawyer may open metadata comments meant to be internal to his Under Texas law, metadata, like other data that opponent in a settlement negotiation and discover the exists in electronic or magnetic form, is discoverable other side’s key negotiation positions such as the 2

DM_US:23068656_1 minimum offer they are willing to accept. See David isolate any files which may contain potentially Hricik, I Can Tell When You’re Telling Lies: Ethics privileged information. and Embedded Confidential Information, 30 J. LEGAL Counsel should be cognizant of metadata when PROF. 79, 82 (2005/2006). exchanging documents with opposing counsel. There are software programs which can remove privileged IV. ETHICAL RULES INVOLVED communications and comments generated during the drafting of documents or spreadsheets. However, note The first ethics rule implicated by the existence that the different varieties of metadata can make of metadata is that of competent and diligent keeping track of or attempting to remove metadata a representation. TEX. DISCIPLINARY R. PROF. complex task. For instance, Microsoft explains that for CONDUCT 1.01. Counsel must properly identify, its Word, Excel, and PowerPoint applications, “[s]ome preserve, collect, and plan for evidence which metadata is readily accessible through the user interface includes the client’s electronic evidence, including of each Office program. Other metadata is only metadata. From the case inception, counsel must accessible through extraordinary means, such as identify the potential metadata involved and be on opening a document in a low-level, binary file editor.” guard against inadvertent spoliation of evidence. As Microsoft Corp., Find and Remove Metadata (Hidden potentially discoverable evidence, metadata must be Information) in Your Legal Documents, http://office. properly preserved. The evidence must be handled microsoft.com/en-us/help/HA010776461033.aspx (last properly to ensure the evidence is properly preserved. visited Jan. 21, 2010). The copying of a hard drive can destroy evidence. Moreover, “[m]etadata is created in a variety of There are different ways to preserve the metadata, ways in Word documents. As a result, there is no single including obtaining a duplicate image of the data method to remove all such content from your source. Another method would be to use a write – documents.” Microsoft Corp., How to Minimize blocker which guards against altering the source data. Metadata in Word 2002, http://support.microsoft.com/ A competent e-discovery vendor could harvest a copy default.aspx?scid=kb;EN-US;290945 (last visited Jan. of the data and provide the information on read-only 21, 2010). media, such as a CD or DVD. It is important to enlist Texas attorneys should add reviewing metadata to competent help when handling electronic data. their skill set to improve their competencies and provide After ensuring the relevant metadata is preserved, more diligent representation when an opponent counsel must protect the confidentiality of the client produces electronic documents to them. In that way, an information contained in it. See TEX. DISCIPLINARY attorney may uncover critical evidence, for example, R. PROF. CONDUCT 1.05. Consider the relevance of about “who knew what when.” ABA Formal Op. 06- the metadata to the case. Metadata can contain 442. But that review should only be performed if it is valuable information, such as the identity of the last ethical to do so, which forces us to consider other ethics person to modify a document and even tracked rules. changes. Hence, counsel should be aware of the New York, Florida, Alabama, and the District of existence of metadata in the client’s documents and Columbia all have ethics opinions concluding that it is take steps to prevent its unintended disclosure; unethical to mine inadvertently produced metadata. including “scrubbing” the metadata if that is N.Y. Comm. on Prof’l Ethics, Op. 749 (2001); Prof’l appropriate. See ABA/BNA LAWYER’S MANUAL ON Ethics of the Fla. Bar, Op. 06-2 (2006); Ala. State Bar PROFESSIONAL CONDUCT 55:407-08 (2008) (listing Office of the Gen. Counsel, Op. No. 2007-02 (2007); ethics opinions from other states concluding that D.C. Bar, Op. 341. Maryland and the ABA have lawyers have a duty to ensure that no inadvertent concluded the opposite. Md. State Bar Ass’n, Comm. disclosure of client information contained in on Ethics, Opinion 2007-092 (2006); ABA Formal Op. metadata). 06-442. During document production in a litigation The states that prohibit metadata mining approach matter, counsel can object to producing metadata, seek the problem from the position that the receiving a protective order or come to an agreement limiting attorney knows, by the very nature of metadata being the metadata fields which will be produced. Another hidden, that any metadata received was inadvertently consideration is ensuring that proprietary or privileged produced. So, when we consider how to treat metadata, information is not contained in the client’s metadata. we should also consider the rules regarding the review Counsel should consider the potential of privileged of inadvertently produced documents, including those metadata in connection with the format counsel is containing privileged information. willing to produce. If producing in native format (which necessarily contains metadata) counsel may wish to run privilege search terms against the data to

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DM_US:23068656_1 V. ETHICS OPINIONS ON METADATA MINING should abide by the sending lawyer’s IN OTHER JURISDICTIONS instructions as to their disposition.”

Unfortunately, mistakes do happen, and metadata ABA Formal Op. 92-368. containing confidential or privileged information can Finally, the Committee returned to the issue wind up in the wrong hands. Although the presented on metadata mining and concluded that Professional Ethics Committee For The State Bar Of Texas has not published an official opinion on the The circumstances of the present inquiry present issue, other state bar organizations have. The an even more compelling case against opinions that apply in other states are consistent with surreptitious acquisition and use of confidential the rules in those states for how inadvertently or privileged information that that presented by produced information in general is to be handled. the “inadvertent” or “unauthorized” disclosure decisions. First, to the extent that the other A. New York lawyer has “disclosed,” it is an unknowing and unwilling, rather than inadvertent or careless The first jurisdiction to consider metadata mining disclosure. In the “inadvertent” and ethics was New York. The New York opinion on the “unauthorized” disclosure decisions, the public matter states that allowing metadata mining was policy interest in encouraging more careful “analogous to less technologically sophisticated conduct had to be balanced against the public means of invading the attorney-client relationship.” policy in favor of confidentiality. No such N.Y. Comm. on Prof’l Ethics, Op. 749, at 2 (2001). balance need be struck here because it is a Also, the Committee argued that deliberate act by the receiving lawyers, not carelessness on the part of the sending lawyer, although counsel for the other party intends which would lead to the disclosure of client the lawyer to received the “visible” document, confidences and secrets. absent an explicit direction to the contrary counsel plainly does not intend the lawyer to N.Y. Comm. on Prof’l Ethics, Op. 749, at 2 (2001). receive the “hidden” material or information Accordingly, the Committee held that metadata mining about the authors of revisions to the was unethical. documents. To some extent, therefore, the “inadvertent” and “unauthorized” disclosure B. Florida cases provide guidance in the present inquiry. The starting point for the Florida opinion on Id. at 3. metadata mining is Florida Rule of Professional Next, the Committee examined a New York Conduct 4-4.4(b): opinion on whether “a lawyer who receives an unauthorized communication from a former employee A lawyer who receives a document relating to of an adversary’s law firm may not seek information the representation of the lawyer’s client and from that person if the communication would exploit knows or reasonably show know that the the adversary’s confidences or secrets.” Id. (citing document was inadvertently sent shall promptly N.Y. Comm. on Prof’l Ethics, Op. 700 (1997). In that notify the sender. opinion, the Committee concluded that such conduct involved “dishonesty, fraud, deceit, or From there, the Florida Bar concluded that misrepresentation” prohibited by New York ethical rules. Id. It is the recipient lawyer’s concomitant The Committee then examined the ABA formal obligation, upon receiving an electronic opinion on the question of whether it is ethical for an communication or document from another attorney to review and use inadvertently produced lawyer, not to try to obtain from metadata confidential documents under circumstances where it information relating to the representation of the is obvious that they were not intentionally produced. sender’s client that the recipient knows or should Id. (citing ABA Formal Op. 92-368). That ABA know is not intended for the recipient. Any such opinion concludes that an attorney in that situation metadata is to be considered by the receiving lawyer as confidential information which the (a) should not examine the materials once the sending lawyer did not intend to transmit. . . . inadvertence is discovered, (b) should notify the sending lawyer of their receipt and (c) If the recipient lawyer inadvertently obtains information from metadata that the recipient 4

DM_US:23068656_1 knows or should know was not intended for N.Y. Comm. on Prof’l Ethics, Op. 749 (2001). Five the recipient, the lawyer must “promptly notify years later, the ABA issued its opinion on metadata the sender. mining contradicting the New York analysis. ABA Formal Op. 06-442. Florida Ethics Opinion 06-2. Interestingly, the Florida The ABA argued that its opinion on general opinion also sets out an ethical obligation for a inadvertent disclosures did not necessarily apply in the sending lawyer to “protect from other lawyers and situation of metadata mining: third parties all confidential information, including information contained in metadata that may be The Committee first notes that the Rules do not included in . . . electronic communications.” Id. contain any specific prohibition against a lawyer’s reviewing and using embedded C. Alabama information in electronic documents. The most closely applicable rule, Rule 4.4(b), relates to a The Office of the General Counsel of the State lawyer’s receipt of inadvertently sent Bar of Alabama adopted the rule and reasoning set out information. Even if transmission of in the New York opinion on metadata mining (Op. “metadata” were to be regarded as inadvertent, 749, discussed above). Alabama Formal Op. 2007-02. Rule 4.4(b) is silent as to the ethical propriety of Thus, it is unethical under Alabama rules to mine a lawyer’s review or use of such information. metadata from an electronic document. Id. The Rule provides only that “[a] lawyer who The Alabama opinion does leave an exception to receives a document relating to the this rule: a court may order electronic documents to representation of the lawyer’s client and knows be produced, along with their corresponding metadata. or reasonably should know that the document Id. In those situations, the court decides that the was inadvertently sent shall promptly notify the metadata may be reviewed. Id. sender. Comment [3] to Model Rule 4.4 indicates that, unless other law requires D. District of Columbia otherwise, a lawyer who receives an inadvertently sent document ordinarily may, but The District of Columbia opinion on metadata is is not required to, return it unread, as a matter of somewhat more nuanced that the New York, Florida, professional judgment. and Alabama rules. The D.C. Bar Legal Ethics Committee decided that: Id. The ABA concluded that the Model Rules do not “contain any specific prohibition against a lawyer’s A receiving lawyer is prohibited from reviewing and using embedded information in reviewing metadata sent by an adversary electronic documents.” Id. Maryland adopted the only where he has actual knowledge that ABA position. Md. State Bar Ass’n, Comm. on Ethics, the metadata was inadvertently sent. In Opinion 2007-092 (2006). such instances, the receiving lawyer VI. TEXAS ETHICS REGARDING should not review the metadata before INADVERTENT DISCLOSURES IN consulting with the sending lawyer to GENERAL determine whether the metadata includes work product of the sending lawyer or It is evident from the formal opinions on metadata confidences or secrets of the sending mining discussed above that ethical rules on inadvertent lawyer’s client. disclosure in general, such as the one set out in ABA Formal Op. 92-368, have played a significant role in D.C. Formal Op. 341 (2007). Thus, it is acceptable developing the rules governing metadata mining. Texas under D.C. rules to review metadata when it is courts, however, have not explicitly adopted the voluntarily provided, for example, during discovery. standard set out in ABA Formal Op. 92-368. Nor has the Texas Committee issued an opinion addressing E. American Bar Association and Maryland inadvertent production in general. Also the Texas Disciplinary Rules of Professional Conduct do not When the New York Committee, the first to include a rule, such as Florida Rule 4-4.4(b), directly consider the ethics of metadata mining, opined that it addressing inadvertent disclosures. Instead, Texas has a was unethical to mine, it relied heavily on ABA rule of civil procedure, Rule 193.3(d), providing for a Formal Op. 92-368 regarding the ethical obligations “snap-back” of inadvertently produced materials after of a lawyer who receives inadvertently disclosed the producing party discovers their production. But that confidential information as a reason for that decision. rule does not create an obligation for the receiving party 5

DM_US:23068656_1 to notify the producing party of the inadvertent against surreptitious acquisition and use of confidential production of privileged information. In re Parnham, or privileged information than that presented by” 263 S.W.3d 97 (Tex. App.—Houston [1st Dist.] 2006, ordinary inadvertent production cases. See N.Y. no pet.); Morin-Spatz v. Spatz, No. 05-00-01580-CV, Comm. on Prof’l Ethics, Op. 749, at 4 (2001). 2002 WL 576513 (Tex. App.—Dallas 2002, no pet.). Whichever way that the Texas rule develops in the In Parnham, a producing attorney’s assistant future, Texas practitioners should be well aware of the made his client’s entire litigation file, rather than problem of inadvertent disclosure of metadata and take merely some documents selected by the attorney for measures to prevent it. production, available to opposing counsel to review and copy. 263 S.W.3d at 99. Upon realizing that some of the documents he was reviewing might be VIII. SOLVING THE PROBLEM OF METADATA privileged, the reviewing attorney stopped looking PRODUCTION THROUGH TRANSPERANCY through those documents. Id. at 100. He did, AND NEGOTIATING WITH OPPOSING however, take “generic, non-substantive notes.” Id. COUNSEL Moreover, the reviewing attorney used a copy service to make copies of the producing attorney’s entire Like many problems encountered during attorney-client correspondence file. Id. The copies discovery, problems with metadata production can never reached the reviewing attorney because the largely be avoided through good planning and clear mistake was discovered by the producing attorney communication with opposing counsel to identify first. Id. at 106. Hence, there were no documents to specifically the kinds of data they expect to receive and “snap-back,” but an issue of privilege remained as to what you are willing to provide. For example, early in the use of the information they contained. Id. the discovery phase of litigation, opposing counsel can The producing attorney’s client moved to negotiate the production format. Parties can, for disqualify the receiving attorney. Id. The trial court example, choose to produce documents in the form of granted that motion. Id. The attorney filed a petition TIFF images (having no metadata corresponding to the for writ of mandamus, which the appellate court original document) and separately produce specifically granted. Id. The court held that TEX. CIV. P. R. identified metadata extracted from the original 193.3(d) “does not provide authority for documents. The metadata can be organized in fields disqualification of counsel who review inadvertently and correlated with the documents by production disclosed materials during the course of discovery.” number. In this way, the parties can obtain the valuable Id.; see also Morin-Spatz, 2002 WL 576513, at *10 information available from the metadata belonging to (“A plain reading of the rule reveals no such duty” to the original documents without the risks attendant from inform opposing counsel of the receipt of producing electronic documents in native format. Many inadvertently produced privileged materials) Rather, parties negotiate the fields of metadata which would be the rule “does not specifically restrict the use of the relevant to the litigation and properly identify and information by the recipient party.” Parnham, 263 document these agreements. S.W.3d at 105. Instead, once a party discovers the inadvertent production, they may use rule 193.3(d) to assert the privilege. Id. At that point the privilege IX. SUMMARY attaches and the documents may not be used in the litigation. Id. Texas courts have not yet decided the extent to which a Texas lawyer can mine inadvertently produced metadata. Texas lawyers should comply with the ethical VII. HOW A TEXAS ETHICS RULE ABOUT rules of competency and confidentiality and understand METADATA MINING MIGHT DEVELOP the characteristics of the electronic evidence involved in their matter. Counsel should be mindful of metadata Regarding inadvertent production of metadata, attached to documents exchanged with opposing Texas might adopt a rule generally consistent with its counsel and use software to manage, and remove law governing inadvertent production. In that event, confidential information. an attorney receiving electronic documents including metadata would have no reason not to mine the metadata for information. Inadvertently produced privileged information in the metadata could be recovered by the “snap-back” provision of rule 193.3(d). On the other hand, perhaps the “circumstances of [inadvertent production of metadata] present an even more compelling case 6

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