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 i 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