Tagged: Embedded Data

Every electronic document contains metadata – hidden, electronically stored information (ESI) which reveals details surrounding its creation, typically including the document’s creator and the date and time the document was created and edited, among other things. Much of this metadata may be innocuous, but some – for example, the identity of every individual who opened or edited a document, or even tracked changes – may reveal privileged and confidential attorney client communications or work product that was not meant to be visible to or seen by the other side. This, in turn, generates issues of concern for lawyers entrusted with preventing disclosure of such confidential information and for those who receive it. Following the recommendations of its Commission on Ethics 20/20, the American Bar Association (ABA) recently amended the Model Rules of Professional Conduct (MRPC) to address these issues and provide guidance to lawyers in both situations. In the wake of the ABA amendments, the New Jersey Supreme Court examined these issues, soliciting input from, among others, the Special Committee on Attorney Ethics and Admissions (Special Ethics Committee) and the Working Group on Ethical Issues Involving Metadata in Electronic Documents (Working Group), and rendering Administrative Determinations on the Reports and Recommendations of both groups. The New Jersey Supreme Court largely adopted the groups’ recommendations (which...