Oklahoma Bar Journal
When Elephants Collide
Maintaining Technological Competence vs. Complying With Discovery Rules
By Alexandra G. Ah Loy and Mbilike M. Mwafulirwa
When two elephants fight, it is the grass that suffers.
– African Proverb
The trumpet for technological competence in legal practice has sounded. Gone are the days when electronic research, filing, pleading, discovery software and tech-filled trials were phenomena – all those are now an indispensable part of modern practice. Gone too are the days when lawyers could turn a blind eye to those technological developments.1 The rules of legal ethics now make it an ethical requirement for lawyers to become familiar with relevant technological advances affecting their practices.2 For added measure, courts in Oklahoma have shown themselves willing to discipline lawyers who fall short.3 The rules do not, however, give specific guidance on the scope of what is “relevant” for the purposes of satisfying technological competence. In the specific context of discovery, for example, does this mean that a lawyer’s duty of electronic competence is gauged by prevailing norms in a given practice area or by the locale in which the attorney maintains her practice? Relatedly, early guidance in 2007 and 2008 from the Alabama, Arizona and New York bar advisory ethical opinions suggested that lawyers should “scrub documents” of metadata before disclosing to opposing counsel.4 Oklahoma has not taken a position on the issue, and as we outline below, with good reason.
Both the Federal Rules of Civil Procedure and the Oklahoma Discovery Code require that documents and electronically stored information be produced in the “form or forms in which it is ordinarily maintained” by the disclosing party “or in a reasonably usable form or forms.”5 This rule, several courts have held, requires that if electronic documents and things are requested, metadata should also be disclosed; a failure to do so can be a breach of discovery obligations.6
Therein lies the conflict for the Oklahoma attorney and the subject of this article. As in the African proverb of the two elephants colliding outlined above, here the first elephant represents the lawyer’s ethical obligations for technological competence, the second elephant is the lawyer’s duty as an officer of the court to comply with her discovery obligations and the grass represents the lawyer in the middle of these seemingly conflicting legal obligations. To the extent possible, we provide guidance on these issues.
THE DUTY OF TECHNOLOGICAL COMPETENCE
Over the past two decades, many courts and advisory opinions have addressed lawyers’ ethical obligations and duties related to the advancements in technology.7 As such, it was no surprise when Comment 8 to ABA Model Rule 1.1 was amended in 2012 to read:
 To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the
lawyer is subjected.
This amendment does not impose any new obligations on attorneys but instead acknowledges the evolving duty of competence by recognizing the impact of technological advancements on legal practice. In its report to the House of Delegates, the ABA Commission on Ethics 20/20 explained that “the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risk associated with it, as part of a lawyer’s general ethical duty to remain competent.”8 Thus, competent representation includes the duty to adapt to new technologies that affect legal practice.9
Likewise, Rule 1.1 of the Oklahoma Rules of Professional Conduct largely mirrors its ABA counterpart. Rule 1.1 provides that “[c]ompetent representation requires the legal knowledge, skill thoroughness and preparation reasonably necessary for that representation.”10 In 2016, Comment 6 to Rule 1.1 was amended to make clear that the duty of competence includes the “benefits and risks associated with relevant technology.”11 Unfortunately, given the ever-changing nature of technology, the duty of technological competence is constantly evolving and unclear at times.12 To exemplify the point, we will consider the thorny issues raised by metadata in discovery.
PROVIDING NECESSARY CONTEXT: METADATA EXPLAINED
Metadata is “information describing the history, tracking, or management of an electronic file.”13 This can encompass “embedded data, including computer programs” “retain[ed] draft language, editorial comments, and other deleted matter…in an electronic file.”14 Courts have defined metadata to include “information about a particular data set which describes how, when and by whom it was collected, created, accessed or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information)” and “all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records.”15
Not all metadata is treated the same; the content of the data determines how it should be handled. Three scenarios underscore the point. First consider, for example, a joint project by opposing lawyers to prepare court documents like joint status reports, agreed protective orders or draft pretrial orders. This necessitates a back and forth between the respective lawyers of several electronic drafts, most likely with track changes, deletions and editorial comments. Based on our working definition from the Federal Civil Procedure Rules Advisory Committee, all that back and forth data with the edits and comments would qualify as metadata.16 With regard to that kind of metadata, the ordinary expectation is that the parties would freely share this information to facilitate a just and speedy review of edits and the drafting exercise.
The second scenario involves internal systems data for a particular business or enterprise. This could encompass, for example, the time that the system users logged on, the data that they generated, altered or removed during their period of use, software used (e.g., computer software used to generate financial projections on spreadsheets).17 Again, applying our broad-working definitions of metadata, that information would easily qualify.18
Finally, consider a scenario where a client forwards an electronic document to her attorney for review. The attorney redlines the document with edits and several comments that provide the client legal guidance. Although the data generated by the attorney might also qualify as metadata,19 this fact-pattern raises thorny privilege issues and the lawyer’s duty to preserve confidentiality in client documents.20 As a result, if this metadata was not properly protected and inadvertently disclosed there could be significant legal ramifications for both lawyer and client.
PRODUCTION OF METADATA IN DISCOVERY
The Oklahoma Discovery Code envisions that “[c]ivil trials no longer be conducted in the dark. Discovery, consistent with recognized privileges, provides for the parties to obtain the fullest knowledge of the issues and facts before trial.”21 Specific to production of documents and things, Oklahoma law allows a requesting party to request and obtain discoverable “electronically stored information.”22 The requesting party is allowed to “specify the form or forms in which electronically stored information is to be produced.”23 If, on the other hand, the requesting party fails to specify the preferred form of electronic production, the responding party “shall produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms . . .”24 If an objection is lodged to the requested form of production but not to releasing the information generally, the disclosing party should indicate “the form or forms it intends to use.”25 After a meet-and-confer, the requesting party is then empowered to move for a court order with respect to any objection to or other failure to respond to the request.26
Thus far, there are no published Oklahoma cases that have specifically addressed parties’ electronic discovery obligations under the Oklahoma Discovery Code. Several federal courts, however, have addressed such issues while construing Fed. R. Civ. P. 34, the federal analogue to 12 O.S. §3234.27 Those courts have recognized there is a split of authority on whether, and to what extent, metadata must be produced.28 The cases appear to show this is a case-by-case determination, taking into account (among other things) whether there was a specific request for metadata,29 the relevance, the applicability of privileges, whether the costs of seeking such discovery is proportionate to the needs of the case and whether objections and claims of privilege are timely asserted by the party objecting to production.30
The Federal District Court in Kansas was among the first to spearhead discovery of metadata. In Williams v. Sprint/United Management, the producing defendant had “scrubbed” the metadata and had “locked” certain data on the electronic spreadsheets prior to production.31 The specific scrubbed metadata at issue included “information such as file names, dates of the file, authors of the file, recipients of the file, print-out dates, changes and modification dates and other information.”32 To justify the scrubbing of such metadata, the defendant claimed that it acted “to preclude the possibility that Plaintiffs could ‘undelete’ or recover privileged and protected information properly deleted from the spreadsheets.”33 The court rejected those arguments. The court held that the new amendments to the Federal Rules of Civil Procedure contemplate that if metadata is specifically requested and is relevant, it should be produced.34 Several other federal courts have also followed suit.35
Other courts have squarely rejected that a producing party must produce electronic documents with metadata intact.36 Interestingly, courts on both sides of the spectrum relied on the emerging standards of electronic discovery in reaching opposite conclusions. Those courts refusing disclosure emphasized, however, that it is incumbent upon the parties to discuss e-discovery issues, including whether and in what format metadata should be produced and the bases for objecting to any such production, prior to seeking relief from the court.37
A word about the new proportionality requirement in the discovery rules. The proportionality requirement, drawn from the Federal Rules of Civil Procedure, is a “case specific determination” that ensures that no more than necessary discovery is utilized in a case.38 The party opposing discovery “has the burden of addressing proportionality.”39 Cost is not the lone dispositive consideration in the proportionality analysis.40 In short, in addition to relevance, proportionality considerations play an important part in metadata discovery requests, just as they do in varied other discovery contexts.41
IS THERE REALLY A CONFLICT BETWEEN THE DISCOVERY RULES AND LEGAL ETHICS?
The prevailing view is that there is no conflict. The American Bar Association (ABA) issued Formal Ethical Opinion 06-442 that addressed the use of metadata. To begin with, the ABA took the position that a lawyer can review metadata in electronic documents from opposing counsel or third parties.42 The formal opinion also draws a distinction between different kinds of metadata; on the one hand, the opinion recognizes metadata that relates to when the data was saved or altered, who created the data, when and so on – as to this there is no specific prohibition in the ethics rules from reviewing that data.43 On the other hand, the opinion also notes different types of metadata – for example, confidential attorney-client confidences – or which appropriate safeguards are warranted.44 When privileged information is at issue, the lawyer should remove the privileged data, retain it, disclose the nonprivileged information and, if necessary, seek a protective order for the withheld information.45 The D.C. Bar Ethics Opinion 341 and Maryland State Bar Opinion 2007-09 mirror this approach.46 Understood in this sense, the removal of privileged metadata is no different to other situations that involve discovery of information that is subject to recognized privileges; after all, recognized privileges stand as a permissible barrier to otherwise discoverable information.47
Against this background, the ethical guidance from the Alabama, Arizona and New York bars – that suggested that lawyers should “scrub documents” of metadata before disclosing to opposing counsel – can now be understood within its proper context. Those opinions do not go against the grain of the preceding analysis; rather, they address an entirely different situation premised on the assumption that privileged metadata had been inadvertently disclosed to opposing counsel. The New York opinions expressly disclaimed taking a position on “electronic documents that have been produced in the way of discovery,” while both the Alabama and Arizona opinions were in accord with New York on inadvertent disclosures, they parted ways with New York by expressly permitting discovery of metadata in discovery, as long as privileged data is safeguarded.48
Inadvertently disclosed metadata poses very difficult questions. More so, if that data contains privileged data or information that implicates a lawyer’s duty to maintain client confidences.49 Rule 4.4(b) of the Oklahoma Rules of Professional Conduct provides that “[a] lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”50 In 2008, Comment 2 was added to Rule 4.4, which discussed ethical obligations arising out of inadvertent disclosures.51 In 2016, Comment 2 to Rule 4.4 was amended to specifically address inadvertent disclosures of electronic information, including metadata.52 Although there is no legal authority interpreting the impact of the amended Comment 2 to Rule 4.4, the amendment recognizes that metadata can be – and is sometimes – inadvertently disclosed, and there may be a duty upon the receiving party in certain circumstances – especially if the receiving lawyer “knows or reasonably should know that the metadata was inadvertently sent” – to notify the sender so she can take protective measures.53
Even then, as Comment 2 makes clear, inadvertent disclosure of metadata can also constitute waiver of applicable privileges,54 but whether there has actually been a waiver is a case-specific determination for courts to determine with regard to all the pertinent circumstances. This is the same approach Oklahoma law takes for disclosure of information covered by the attorney-client privilege or the work-product doctrine.55 This approach would most likely be expected to carry over into various other privilege claims.
During discovery, when metadata is at issue, the lawyer’s obligation remains to disclose unprivileged, relevant data that is proportional to the needs of the case. Legal ethics do not excuse this duty. Even then, the lawyer has a competing duty to prevent inadvertent disclosure of privileged data. To properly discharge these competing obligations, the lawyer should first carefully assess the electronic information to determine whether it contains sensitive metadata, so that privileges and objections may be timely asserted. Finally, if the lawyer determines it is necessary or prudent to scrub such metadata, the lawyer should take appropriate measures to ensure the metadata is preserved in its original form as well and seek protection from the court, if need be.
ABOUT THE AUTHORS
Alexandra G. Ah Loy is a partner at the law firm of Johnson, Hanan, Vosler, Hawthorne & Snider in Oklahoma City where she focuses her practice in civil litigation, including medical malpractice, civil rights defense and subrogation. Mrs. Ah Loy graduated with honors from the OCU School of Law in 2012 and currently serves as secretary of the OCU School of Law Alumni Association Board of Directors.
Mbilike M. Mwafulirwa is an attorney at Brewster & DeAngelis. His practice focuses on complex litigation, civil rights and appellate law. He is a 2012 graduate of the TU College of Law.
1. See Alexandra G. Ah Loy, “The Attorney’s Ethical Duty to Maintain Technological Competence”, 89 O.B.J. 14, 15-17 (2018).
2. Rules of Prof’l Conduct, Rule 1.1, OK ST RPC Rule 1.1 (2016).
3. See State ex rel. Okla. Bar Ass’n v. Oliver, 2016 OK 37, ¶¶3-8, 369 P.3d 1074 (issuing public censure to lawyer for failing to report his discipline by the Western District of Oklahoma Bankruptcy Court for repeated electronic filing violations).
4. See A. Ah Loy, “The Attorney’s Ethical Duty” 17, supra note 1 (citing NYCLA Ethics Op. 738 (2008); see also AL State Bar Op. 2007-02 (2007) (prohibiting mining of an adversary’s inadvertently produced electronic metadata; AZ Bar Ethics Op. 07-03 (2007)).
5. Fed. R. Civ. P. 34(b)(2)(E)(ii); 12 O.S. §3234(B)(2)(e)(2).
6. See, e.g., Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 656 (D. Kan. 2005).
7. See, e.g., Housing Rights Ctr. v. Sterling, No. 03 Civ. 859, 2005 WL 3320739, at *3, 7 (C.D. Cal. March 2, 2005); Prof’l Ethics of the Fla. B., Op. 06-2 (2006); Garcia v. Berkshire Life Ins. Co. of Am., No. 04-cv-01619-LTB-BNB, 2007 WL 3407376, at *5 (D. Colo. Nov. 13, 2007); Phoenix Four, Inc. v. Strategic Resources Corp., No. 05 Civ. 4837 (HB), 2006 WL 1409413, at *5 (S.D.N.Y. May 23, 2006); In re A&M Flo. Props. II, LLC, No. 09-15173 (AJG), 2010 WL 1418861, at *5 (Bankr. S.D.N.Y. April 7, 2010); Delegates, 105A (May 7, 2012); James v. Nat’l Fin. LLC, No. CV 8931-VCL, 2014 WL 6845560, at *12 (Del. Ch. Dec. 5, 2014).
8. ABA Comm. on Ethics 20/20, Report to the House of Delegates, 105A (May 7, 2012).
9. Id. Fed. R. Civ. P.
10. Rules of Prof’l Conduct, Rule 1.1, OK ST RPC Rule 1.1 (2016).
11. Id. (emphasis added).
12. See generally A. Ah Loy, “The Attorney’s Ethical Duty” 15-17, supra note 1.
13. Advisory Committee Comment to Fed. R. Civ. P. 26(f) (2006 Amendment); Black’s Law Dictionary 1080 (9th ed. 2014); accord Sedona Glossary, 15 Sedona Conf. J. 305, 339 (2014).
14. Advisory Committee Comment to Fed. R. Civ. P. 26(f) (2006 Amendment).
15. Williams, 230 F.R.D. at 646 (quoting The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, App. F (2005)).
16. See Advisory Committee Comment to Fed. R. Civ. P. 26(f) (2006 Amendment).
17. See Ronald J. Hedges, et al., Managing Discovery of Electronic Information: A Pocket Guide for Judges 4 (Fed. Jud. Cntr. 3rd ed. Sept. 20, 2017).
20. See, e.g., Okla. Stat. Tit. 12, §2502 (attorney-client privilege).
21. State ex rel. Protect. Health Servs. v. Billings Fairchild Cntr., Inc., 2007 OK CIV APP 24, ¶17, 158 P.3d 484, 489 (emphasis added); Okla. Stat. Tit.12, §3226(A)(1).
22. Okla. Stat. Tit. 12, §3234(A)(1)(a).
23. Id. §3234(B)(1)(c).
24. Id. §3234(B)(2)(e)(2).
25. Id. §3234(B)(2)(d).
26. Id. §3234(4)(d).
27. Hall v. Goodwin, 1989 OK 88, ¶7, 775 P.2d 291, 293 (looking to federal decisions as a guide to construing Oklahoma Discovery Code).
28. See, e.g., Williams, 230 F.R.D. at 656.
29. The Advisory Committee Notes to Fed. R. Civ. P. 34(b) (2006 Amendment) provide that the “amendment to Rule 34(b) permits the requesting party to designate the form or forms in which it wants electronically stored information produced… Specification of the desired form or forms may facilitate the orderly, efficient, and cost-effective discovery of electronically stored information.” (emphasis added).
30. See, e.g., State v. Louisiana Land & Expl. Co., 2017-755 (La. Ct. App. Dec. 20, 2017).
31. Williams v. Sprint/United Management Co., 230 F.R.D. at 652.
32. Id. at 644.
33. Id. at 642-645.
35. See Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Edu., No. 2:11-cv-3471 KJM AC, 2017 WL 445722, at **4-5 (E.D. Cal. Feb. 2, 2017) (under F.R.C.P. 34(b) (1) (C) “the requester ‘may specify the form or forms in which electronically stored information is to be produced,’” responding party cannot choose the form of production); accord Dixon v. Experian Info. Sol., Inc., No. 2:13-cv-227-PPS-PRC, 2014 WL 2881589, at **3-5 (N.D. Ind. June 25, 2014); Anderson Living Trust v. WPX Energy Prod., LLC, 298 F.R.D. 514, 526 (D.N.M. 2014) (noting that “[i]t is only if the requesting party declines to specify a form that the producing party is offered a choice between producing in the form in which it is ordinary maintained — native format — or in a reasonably useful form or forms”) (emphasis added); In re Porsche Cars N. Am., Inc., Plastic Coolant Prods. Litig., 279 F.R.D. 447, 449 n. 5 (S.D. Ohio 2012) (“If the requesting party does not specify a form, therefore, the producing party is within its right to produce the ESI in static image form (TIFF or PDF) with no metadata.”); Aguilar v. Imm. & Cust. Enforce. Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D. 350, 355 (S.D.N.Y. 2008) (“If the requesting party does not specify a form for producing ESI, the responding “party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”); F.D.I.CV. v. Bowden, No. CIV 413-245, 2014 WL 2548137, at *11 (S.D. Ga. June 6, 2014) (same).
36. See, e.g., Kentucky Speedway, LLC v. Nat’l Ass’n. of Stock Car Auto Racing, CIV.A. 05-138-WOB, 2006 WL 5097354, at *8 (E.D. Ky. Dec. 18, 2006).
38. Reibert v. CSAA Fire & Cas. Ins. Co., No. 17-CV-350-CVE-JFJ, 2018 WL 279348, at *4 (N.D. Okla. Jan. 3, 2018) (applying Fed. R. Civ. P. 34); Okla. Stat. Tit. 12, §3226(B)(1)(a).
40. Id. at **4-5.
41. See Ronald J. Hedges, et al., Managing Discovery of Electronic Information at 19-22, supra note 17.
42. See ABA Formal Ethics Opinion 06-442 at *1 (Aug. 5, 2006).
43. Id. at *3.
44. Id. at **2-3.
45. Id. at **4-5.
46. See D.C. Bar Ethics Op. 341 (2007); see also Maryland State Bar Op. 2007-09 (2007).
47. See Billings Fair Child, 2007 OK CIV APP 24, ¶17, 158 P.3d at 489.
48. See, e.g., NYCLA Ethics Op. 738; accord N.Y. State Bar Op. 749; AL State Bar Op. 2007-02 (2007) (prohibiting mining of an adversary’s inadvertently produced electronic metadata but acknowledging that permissive rules apply to metadata properly requested and exchanged as part of discovery); A.Z. Bar Ethics Op. 07-03 (2007) (same).
49. See D.C. Bar Ethics Op. 341; see also generally ABA Formal Op. 06-442 at **4-5.
50. See Rules of Prof’l Conduct, Rule 4.4, OK ST RPC Rule 4.4 (2016) (emphasis added).
51. See Rules of Prof’l Conduct, Rule 4.4, OK ST RPC Rule 4.4, Comment  (2008).
52. See Rules of Prof’l Conduct, Rule 4.4, OK ST RPC Rule 4.4, Comment  (2016).
55. See Okla. Stat. Tit. 12, §2502(E).