More on Metadata and Other Electronic Document Issues
Two recent Arizona decisions illustrate that technological advances continue to create both opportunities and risks for law firms and their clients. If they have not already done so, firms should dedicate the resources necessary to track developments in this area.
The Arizona Supreme Court recently ruled that metadata embedded in electronic documents is part of the public record and must be disclosed in response to a public records request. See Lake v. City of Phoenix, 218 P.3d 1004 (Ariz. 2009). The ruling involved an employment discrimination suit filed by a former Phoenix police officer. The officer made a public records request, seeking notes his supervisor kept in electronic form related to the officer’s job performance. After reviewing the hard-copy file, the officer suspected that certain notes had been back-dated. He then filed another public records request so that he could review the metadata embedded in the supervisor’s electronic notes. The trial court denied the officer’s request, and the appellate court affirmed, concluding that the public record does not encompass metadata.
The Arizona Supreme Court reversed, holding that when a public record is maintained in electronic form, the electronic record, including any metadata, is subject to disclosure under the state’s public records law. The court disagreed with the City of Phoenix’s claim that production of metadata would be an administrative nightmare, finding that unduly burdensome or harassing requests can be addressed under existing law.
In a separate development, the Arizona State Bar Commission on the Rules of Professional Conduct endorsed a law firm’s encrypted electronic client file storage system that allows clients to access their files directly. See Arizona Opinion 09-04. The committee had previously determined that electronic storage of client files is permissible, as long as adequate steps are taken to protect file confidentiality. See Arizona Opinion 05-04. The committee approved the firm’s security proposals, but warned that these measures might become inadequate as technology advances over time.
To enjoy the benefits and avoid the risks that can result from technological advances, firms should continue to monitor court decisions and ethics opinions that define the firm’s and its clients’ responsibilities in this area. ALAS will continue to inform our member firms of significant developments in this area.