METADATA BEWARE: COURT RULES GO DIGITAL

It is hard to believe that the end of summer is fast approaching. Whether you consider the beginning of summer to be Memorial Day weekend or the 4th of July, it still seems like it was only yesterday. How time flies. Besides shorter days, cooler nights, school commencing, and packing away the swim suits, the end of summer ushers in another tradition which members of the legal community can look forward to – the Amendments to the New Jersey Court Rules. Once again, the New Jersey Supreme Court has adopted various amendments to the Court Rules effective September 1, 2016. Besides certain Rules involving juvenile proceedings, there were no Part V amendments adopted this cycle specifically relating to the practice of Family Law. However, there are a number of amendments to the Court Rules of more general application which may well impact, directly or indirectly, the handling of Family Law cases, and which I would like to briefly summarize in this blog post.

In a litigated family law case, the Rules of Court allow a party to compel the third-party witness to appear and give testimony and to produce documents and records whether for discovery purposes pursuant to R. 4:14-7 or at trial pursuant to R. 1:9-1 and R. 1:9-2. In either instance, the attendance of such witness is compelled by way of subpoena issued and served as prescribed by R. 1:9 et seq. Generally, R. 1:9-3 required that service of a subpoena had to be made by delivering a copy directly to the person named. However, an amendment to that Rule has recently been adopted so as to provide:

“A subpoena which seeks only the production of documents or records may be served by registered, certified or ordinary mail and if served in that manner, shall be enforceable only upon receipt of a signed acknowledgment and waiver of personal service.”

Translated it appears to be that while you no longer are required to personally serve a subpoena upon someone from whom you only seek the production of documents, if you do so and that person fails to comply you can only move to enforce that subpoena if that person has signed an acknowledgment thereof and signed a waiver of personal service. It has been my experience that even without this amendment to the rule, many attorneys were mailing subpoenas to certain third parties, mainly entities such as banks, credit card companies and the like, seeking bank statements, credit card records, or other business records. While this process did not comport with the court rules until now, it was often done anyway in hopes that the third party would be none the wiser and would supply the documentation anyway. Mailing a subpoena was a gamble. If that third party ignored the subpoena, there was nothing one could do to enforce it. While this new amendment now authorizes the mailing of a subpoena upon a third party if it involves simply the production of documents, it still remains a gamble, dependent upon that third party signing and returning the required “acknowledgment and waiver of personal service”. Clearly, such a document must now accompany any subpoena for documents mailed to a third party. I submit that even if you have proof by way of a certified or registered receipt that the subpoena had been delivered , without the signed acknowledgment and waiver, the subpoena would remain unenforceable, and dependent upon the good graces of the recipient to comply therewith. Personal service still remains the best option when it comes to the service of subpoenas.

The next set of Rule Amendments which may impact family practice involve the handling of appeals. The content requirements of appellate briefs pursuant to R. 2:6-2 has been amended so as to provide that with regard to a Table of Contents, each point heading of an Appellant’s Brief must now include in parentheses at the end of the point heading the place in the record where the opinion or ruling in question is located, or if the issue was not raised below a statement indicating same. In addition, an Appellant Brief’s must also now include a separate “Table of Judgments, Orders and Rulings being appealed”, which table is to include a listing of the places in the record where the following items are located: (A) Trial Court’s Judgment(s), Order(s), and Ruling(s) being appealed; (B) the trial judge’s written or oral opinion; and (C) intermediate decisions, if any, pertinent to the appeal. Additionally, in regards to the legal argument section of the Appellant’s Brief, at the end of every point heading, the appellant is to include in parenthesis at the end of the point heading the place in the record where the opinion or ruling is located or if the issue was not raised below a statement indicating same. This amendment was not only intended to aid the Appellate Judges in identifying precisely where in the record the issues being appealed were dealt with, but also to confirm that they were even dealt with or raised below. With exceptional circumstances, Appellate courts do not address or consider issues if they were not raised or preserved in the record below.

As you are reading this blog post, you must be wondering why it is titled the way it is? No longer wanting to keep you in suspense, I believe the most compelling amendments to the Court Rules (as well as the Rules of Professional Conduct) for this cycle deal with the handling of the electronic information and documents, and most notably the potential pit falls and complications arising from the exchange or service thereof. Specifically, as the electronic and digital exchange of information and documents becomes more common place and pervasive, whether as an aspect of e-filing, e-discovery, or simply in lieu of faxes or mail, there was a growing realization that for many of these electronic or digital documents there existed much more beneath the surface than what one readily sees on the computer screen. Generically referred to as “Metadata”, it has been defined in the Official Comments to the Rules as being embedded information in the electronic documents that is generally hidden from view in a printed copy of the document, generated when documents are created or revised on the computer, may reflect such information as the author of the document, the date or dates on which the document was revised, tracked revisions to the document, as well as comments inserting in its margins, as well as reflecting information necessary to access, understand, search and display the contents of documents created in a spread sheet, database and similar applications. Simply stated, whenever an editable document is created, whether utilizing word processing software, spreadsheet software, data entry software and the like, the entire “history” of that document may be embedded within it. Prior drafts may have been edited to exclude information that was never meant to be seen by the other side, including matters considered work product or possibly privileged. Many attorneys may not have realized this and unwittingly send documents containing information that was never intended to be disclosed. More technically savvy practitioners may have sought to uncover that metadata, or started to demand same as part of their discovery requests. In an attempt to grapple with this “Metadata” issue, certain Rules have been amended to try and set some guidelines and parameters with respect to same. Beyond this, these Amendments, if nothing else, call this issue to the attention of judges, attorneys and parties alike. First, R. 4:10-2 has been amended so as to make clear that a party may request metadata in electronic documents in discovery, while also cautioning that when parties request metadata in discovery, they should consult and seek agreement regarding the scope of the request and the format of electronic documents to be produced, and that in the absence of an agreement, on a motion to compel discovery or for a protective order, the party from whom discovery is sought shall demonstrate that the request presents undue burden or costs. In the Official Comments to this Rule, in addition to defining what “metadata” is, it also makes clear that metadata in electronic documents do not affect the general rule that information protected by privilege is not subject to discovery.

R. 4:18-1 already allowed for discovery of “electronically stored information and any other data or data compilations stored in any medium from which information can be obtained and translated”. However, the Official Comments to this Rule have been amended to not only include the definition of metadata and that parties may request metadata in electronic documents, but most importantly cautioning litigants and lawyers to be aware of its existence, encouraging them to meet and confer about the format in which electronic documents would be produced, and to try and seek agreement whether the receiving party may review unrequested metadata in electronic documents. One may be thinking about whether there is a way to remove metadata from a document so as to alleviate this issue. The Supreme Court recognized this when it cautioned it is Official Comments that “parties have an obligation to preserve metadata in electronic documents, subject to a standard of reasonableness”, i,e, to avoid the potential spoliation of evidence. The comments go on to note that in trying to reach agreement with regard to the dissemination and use of metadata, parties may agree not to “strip” documents of metadata or to agree to refrain from reviewing metadata in electronic documents when same had not been specifically requested in discovery. In this regard, the Comments caution the receiving party that if electronic documents are provided in response to a discovery request, the “receiving lawyer should consider his or her obligations under Rule of Professional Conduct 4.4(b) before reviewing metadata”. Along these lines, RPC 4.4 was also amended governing an attorney’s duties and responsibilities in regards to the inadvertent receipt of not only documents but “electronic information” including those which may contain privileged lawyer-client communications. Because of their significance, rather than paraphrasing, I quote from the Official Comments to the amendment of RPC 4.4 which in pertinent part provides:

“A lawyer who receives an electronic document that contains unrequested metadata may, consistent with Rule of Professional Conduct 4.4(b), review the metadata provided the lawyer reasonably believes that the metadata was not inadvertently sent. When making a determination as to whether the metadata was inadvertently sent, the lawyer should consider the nature and purpose of the document. For example, absent permission from the sender, a lawyer should not review metadata in a mediation statement or correspondence from another lawyer, as the metadata may reflect attorney-client communications, work product or internal communications not intended to be shared with opposing counsel. The lawyer should also consider the nature of the metadata at issue. Metadata is presumed to be inadvertently sent when it reflects privileged attorney-client or work product information. Metadata is likely to be inadvertently sent when it reflects private or proprietary information, information that is outside the scope of discovery by agreement or court order, or information specifically objected to in discovery. If a lawyer must use forensic “mining” software or similar methods to reveal metadata in an electronic document when metadata was not specifically requested, as opposed to using simple computer keystrokes on ordinary business software, it is likely that the information so revealed was inadvertently sent, given the degree of sophistication required to reveal the metadata.”

These cautionary tales being said, how might this actually impact family law practice? The first step is knowledge. The digital world is an extremely complicated one. Many people believe that if you hit the delete button and you don’t longer see it on your screen it is gone forever. We now know or should know that this is not the case. We should now be aware of the existence of this “metadata” and that it is something that can be demanded in discovery. You should also be aware of what we are sending out electronically. For many practitioners documents are scanned and saved as “pdf” documents. In effect these are pictures. While that pdf document may contain information as to when and how that picture was taken, it should not have “metadata” embedded therein relating to the history of the underlined document itself. What about editable versions of pdf documents? The bigger concern involves the electronic sharing of the underlying document itself, not the scanned pdf version of it. If the document can be changed, edited or modified it probably contains metadata. What are your ethical responsibilities if confronted with the a request or demand for same? What are your ethical responsibilities as the recipient? For many these are uncharted waters. This is the first real foray in the Court’s attempt to not only deal with same but to bring awareness of this issue. Metadata beware!