New Jersey practitioners and litigants should be on alert: metadata is coming soon to rules governing professional conduct and civil discovery near you. On April 14, 2016, the New Jersey Supreme Court announced in an administrative determination that it will be adopting the recommendations made in the September 14, 2015 Report of the Working Group on Ethical Issues Involving Metadata in Electronic Documents. The amendments will (1) require lawyers to be aware of and safeguard the metadata of third-parties that is inadvertently produced, and (2) specifically address the discoverability of metadata in electronic information in the context of civil litigation.
This is a very significant development that should be studied by the New Jersey Bar. To further that effort, Davison, Eastman & Muñoz will be providing an ongoing summary regarding the changes to the New Jersey Rules of Professional Conduct (“NJRPC”) and the Court Rules governing civil discovery and will raise a variety of related issues, such as:
- What exactly is metadata and why should New Jersey lawyers care about it?
- Is there a clear standard that determines when a document or piece of electronic information is “inadvertently sent” under NJRPC 4.4(b)?
- Is there a clear standard that determines when a piece of electronic information is subject to the attorney-client privilege?
- Do the changes to NJRPC 4.4(b) allow a lawyer to preserve and sequester the document or electronic information that is subject to a claim of inadvertent disclosure for the purpose of raising the issue with the New Jersey judiciary?
- Is there any guidance that addresses how the changes to NJRPC 4.4(b) will affect a lawyer’s obligation under NJRPC 3.4(a) to refrain from unlawfully altering, deleting, destroying, or concealing a document or other material that has potential evidentiary value?
Stay tuned.
Matt Blaine
