This past March at the ABA TechShow, I had the pleasure of listening to and briefly meeting Professor David Hricik. I also follow the Legal Ethics Forum here on Typepad, where he posts.
It's not often that legal technology and legal ethics --both of great interest to me-- intersect. One of those intersections, which we've discussed herein our Section, is that of metadata. Prof. Hricik recalls discussing that subject with Professor Monroe Freedman, recently, and this is a summary of their discussion, as told by Prof. Hricik:
It was quite interesting, and I'll not be able to do the conversation justice here, but wanted to try to crystalize why we disagree on the metadata issue, but agree quite firmly on the broader issues of the adversary system.
To begin, I think we were both not surprised to learn that each of us strongly believes in the adversary system. (He mentioned a popular thinker, Professor Simon of Columbia, who thinks lawyers should try to "do justice" and that struck me as quite odd, for example. Doing justice isn't my job when I'm representing a client, and any lawyer who sets out, in our system, to do that, is not a lawyer I'd want to hire or would recommend to a client.) I don't think that when serving as an advocate I have a general obligation to help my opposing counsel, and indeed, quite the opposite: if I can use his mistake to his client's disadvantage, I am happy. (Oh, I could tell war stories here. My favorite one though is when plaintiff's counsel just before a case was set for trial in Texas state court amended the petition to include a federal claim, and off we went, after several years of meandering in state court, to federal court.) Anyhow...
Why do I think metadata is different. Why do I believe that I shouldn't rummage through a Word document sent to me by an opposing counsel to see if it includes confidential information.
I think, and my forthcoming article's title tells you this, that the difference is that I am acting intentionally to uncover something that I know should not be there. It's not passive acts by me in responding to their activity, but is instead actions by me in taking steps (granted, relatively simple ones), to find what I know shouldn't be there. In discovery, that's fine, but not in daily practice. In addition, the errors of law that we take advantage of are of a different kind -- I find it unreasonable to expect lawyers to keep up with all this technology (it will always be ahead of them - see the post on Vista below). And, the cost to clients is another issue. To make scrubbers fool-proof, they'd have to be on every computer (laptops, home computers, client's computers...).
To me, this puts mining for embedded data "beyond" the inadvertent fax, when I simply look at something that's sent to me. To get the benefit, I have to actively look for information that I know should not be there, but which I'm hoping through neglect or technological failure still is. The better analogy to me is opening up the brief case left on the deposition table and rummaging around for documents. Or, rummaging through a pile of papers left by mistake on the conference room table after the lawyer left, hoping to find a critical document. That puts it past a mistake, and into intentionally taking advantage of other people's failures.
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