Cal. State Bar Formal Opn. No. 2007-174 — Return of Electronic Client Files

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THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2007-174
ISSUE: Is an attorney ethically obligated, upon termination of employment, promptly to release
to a client, at the client’s request, (1) an electronic version of e-mail correspondence, (2)
an electronic version of the pleadings, (3) an electronic version of discovery requests and
responses, (4) an electronic deposition and exhibit database, and/or (5) an electronic
version of transactional documents?
DIGEST: An attorney is ethically obligated, upon termination of employment, promptly to release
to a client, at the client’s request: (1) an electronic version of e-mail correspondence,
because such items come within a category subject to release; (2) an electronic version of
the pleadings, because such items too come within a category subject to release; (3) an
electronic version of discovery requests and responses, because such items are subject to
release as reasonably necessary to the client’s representation; (4) an electronic deposition
and exhibit database, because such an item itself contains items that come within
categories subject to release; and (5) an electronic version of transactional documents,
because such items are subject to release as reasonably necessary to the client’s
representation. The attorney’s ethical obligation to release any electronic items, however,
does not require the attorney to create such items if they do not exist or to change the
application (e.g., from Word (.doc) to WordPerfect (.wpd)) if they do exist. Prior to
release, the attorney is ethically obligated to take reasonable steps to strip from each of
these electronic items any metadata reflecting confidential information belonging to any
other client.
AUTHORITIES
INTERPRETED: Rule 3-700(D) of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6068, subdivision (e)(1).
STATEMENT OF FACTS
Attorney A was originally retained by Client to represent Client in negotiating and executing an agreement with
BiotechCorp, under which Client entrusted a secret invention to BiotechCorp for development, patenting, and
commercialization in exchange for payment of royalties. In the course of the representation, Attorney A prepared
transactional documents, including the agreement itself, using a commonly available word-processing computer
program to create manipulable files, and preserving such files in a readily searchable electronic document
management system, in both final form and antecedent drafts. During the representation, Attorney A sent and
received various e-mail correspondence.
Subsequently, Attorney A was retained by Client in a separate matter to file and prosecute an action on Client’s
behalf against Landlord relating to Landlord’s breach of a lease to commercial premises occupied by Client. In the
course of the representation, Attorney A prepared pleadings and discovery requests and responses, using the same
commonly available word-processing computer program to create manipulable files, and preserving such files in the
same readily-searchable electronic document management system, in both final form and antecedent drafts.
Attorney A also created an electronic database, which is electronically searchable by word queries and other queries,
containing deposition transcripts and exhibits. During this representation too, Attorney A sent and received various
e-mail correspondence.

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Client has now chosen to terminate Attorney A’s employment and to employ Attorney B in Attorney A’s place.
Client has requested Attorney A to release to Client all of Client’s papers and property. In particular, Client has
requested an electronic version of the pleadings in the action against Landlord, expressing an intent to make them
available to Attorney B for reuse, by electronic “cutting” and “pasting,” in drafting new documents in the litigation
as it progresses, and an electronic version of the discovery requests and responses, expressing the same intent.
Client has also requested the electronic deposition and exhibit database, expressing an intent to make it available to
Attorney B for use in discovery, trial preparation, and trial itself. Client has additionally requested an electronic
version of the transactional documents in the BiotechCorp matter, expressing an intent to make them available to
Attorney B to safeguard Client’s interests as questions or disputes arise concerning the scope and purpose of the
agreement, including specifically BiotechCorp’s obligation to pay royalties under licensing agreements. As to each
representation, Client has requested an electronic version of the e-mail correspondence, for ease of searching its
contents. Attorney A has refused to release any of these items, claiming that each contains metadata reflecting
confidential information belonging to other clients. Attorney A has made no assertion in support of his refusal based
on the attorney work product doctrine of section 2018.010 et seq. of the Code of Civil Procedure.1/
DISCUSSION
1. Rule 3-700(D) of the Rules of Professional Conduct Obligates an Attorney Promptly to Release Client
Papers and Property, at the Client’s Request, Upon Termination of Employment
Rule 3-700(D) of the Rules of Professional Conduct (“rule 3-700(D)”) provides that, “[s]ubject to any protective
order or non-disclosure agreement,” an attorney “whose employment has terminated shall . . . . promptly release to
the client, at the request of the client, all the client papers and property. ‘Client papers and property’ includes
correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items
reasonably necessary to the client’s representation, whether the client has paid for them or not . . . .” (Rule 3-700(D)
& (D)(1).)2/ The attorney must make such release of client papers and property at no cost to the client.3/
Rule 3-700(D)’s scope is evident. Among “[c]lient papers and property,” the rule includes certain items coming
within listed categories and also any other items that are “reasonably necessary to the client’s representation.” (Rule
3-700(D)(1).)
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1/ In this opinion, we do not address ownership or entitlement issues that would arise if a person or entity other than
Client had asserted a right to the papers and property.
2/ Accord, e.g., State Bar Formal Opn. No. 1994-134 (quoting rule 3-700(D)(1)); State Bar Formal Opn. No. 1992-
127 (same; construing “client papers and property” within the meaning of rule 3-700(D)(1) to include the “entire
contents of the file”); cf. Los Angeles County Bar Association Formal Opn. No. 362 (1976) (construing the
predecessor to rule 3-700(D)(1), in accordance with an earlier opinion of the same local bar association, in line with
rule 3-700(D)(1)); San Diego County Bar Association Formal Opn. No. 2001-1 (concluding that, under rule 3-
700(D), an attorney may not withhold client papers and property for nonpayment of the attorney’s bill).
3/ Although the attorney must release client papers and property to the client at no cost, the attorney may enter into
an agreement providing that the client will pay for the cost of making a copy of such papers and property for the
attorney to retain in his or her own files. See Rule 3-700, Discussion (stating that rule 3-700(D) is “not intended to
prohibit a member from making, at the member's own expense, and retaining copies of papers released to the client,
nor to prohibit a claim for the recovery of the member’s expense in any subsequent legal proceeding”). (Rule 3-
700(D), italics added.)

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Rule 3-700(D)’s purposes include respecting the client’s ownership interest in his or her papers and property and
preventing “reasonably foreseeable prejudice” to the client’s interests generally. (Rule 3-700(A)(2).)4/
The obligation imposed on an attorney by rule 3-700(D) with respect to the prompt release of a client’s papers and
property, at the client’s request, upon termination of employment, and the scope and purpose of that obligation, are
consistent with the principles that a client may terminate an attorney’s employment freely,5/ and that the attorney
owes a duty of loyalty to the client, albeit limited, even after termination of employment.6/
In imposing on an attorney an obligation promptly to release a client’s papers and property, at the client’s request,
upon termination of employment, rule 3-700(D) expressly extends its coverage to “all the client papers and
property.” (Rule 3-700(D), italics added.) It does not draw any distinction based on the form of any item, whether
electronic or non-electronic. Neither can it reasonably be read to do so. That is because “client papers and
property” is not a “static” “concept,” but rather one whose “content will change depending upon circumstances,”7/
covering items in electronic form as well as non-electronic form.
2. Rule 3-700(D) Obligates an Attorney, Upon Termination of Employment, Promptly to Release to a
Client, at the Client’s Request, (1) An Existing Electronic Version of E-mail Correspondence, (2)
Existing Electronic Versions of the Pleadings, (3) Existing Electronic Versions of Discovery Requests
and Responses, (4) Existing Electronic Deposition and Exhibit Databases, and (5) Existing Electronic
Versions of Transactional Documents
The question before the Committee is whether, upon termination of employment, an attorney is obligated by rule 3-
700(D)(1) promptly to release to a client, at the client’s request, (1) an electronic version of e-mail correspondence,
(2) electronic versions of the pleadings, (3) electronic versions of discovery requests and responses, (4) electronic
deposition and exhibit databases, and (5) electronic versions of transactional documents.
As for the nature of the items in question: Among the “client papers and property” included in rule 3-700(D)(1),
correspondence and pleadings, respectively, come within the listed category of “correspondence” and “pleadings”
expressly. Likewise, deposition and exhibit databases come within the listed categories of “deposition transcripts”
and “exhibits” by implication, inasmuch as deposition and exhibit databases, by definition, contain deposition
transcripts and exhibits. The same, however, cannot be said of discovery requests and responses or transactional
documents, which do not correspond to any listed category either expressly or by implication. Nevertheless,
discovery requests and responses and transactional documents comprise items that are “reasonably necessary to the
client’s representation.” (Rule 3-700(D)(1).) An item is “reasonably necessary to the client’s representation” if it is
“generated during the representation” for continuing use therein.8/ Discovery requests and responses satisfy this
definition, since they may give rise to further discovery requests and responses and may also be included as exhibits
to motions and as exhibits at trial. Transactional documents satisfy this definition as well, since they are used for
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4/ See State Bar Formal Opn. No. 1994-134 (implying that “client papers and property” within the meaning of rule
3-700(D)(1) is not a “static” “concept,” and stating that its “content will change depending upon circumstances”;
“the attorney’s ethical responsibilities do not turn on the physical contents of the client’s ‘case file,’ but rather on the
ethical obligation . . . to act reasonably to avoid reasonably foreseeable prejudice to his or her former client”); see
also Bar Association of San Francisco Formal Opn. No. 1996-1 (reaffirming Bar Association of San Francisco
Formal Opn. No. 1990-1, which implies that “client papers and property” within the meaning of rule 3-700(D)(1)
includes any item whose release is necessary to avoid reasonably foreseeable prejudice to the client’s interests).
5/ See, e.g., Fracasse v. Brent (1972) 6 Cal.3d 784, 790 [100 Cal.Rptr. 385]; Academy of California Optometrists,
Inc. v. Superior Court (1975) 51 Cal.App.3d 999, 1005 [124 Cal.Rptr. 668].
6/ See, e.g., People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, 155-156 [172 Cal.Rptr. 478]; Wutchumna
Water Co. v. Bailey (1932) 216 Cal. 564, 573-574 [15 P.2d 505].
7/ State Bar Formal Opn. No. 1994-134.
8/ State Bar Formal Opn. No. 1992-127.

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purposes including monitoring performance under the original agreement underlying the transaction in question and
any related agreement between the parties to that transaction and third parties who subsequently become involved.
As for the form of the items in question, that proves immaterial. As explained, rule 3-700(D)(1) expressly extends
its coverage to “all the client papers and property,” without distinction based on the form of any item, whether
electronic or non-electronic.
In light of the foregoing, the Committee answers the question before it in the affirmative, concluding that, upon
termination of employment, an attorney is indeed obligated by rule 3-700(D)(1) promptly to release to a client, at the
client’s request, (1) an electronic version of e-mail correspondence, (2) electronic versions of the pleadings, (3)
electronic versions of discovery requests and responses, (4) electronic deposition and exhibit databases, and (5)
electronic versions of transactional documents.9/
In concluding as it does, the Committee believes that, at least as a general matter, an attorney’s obligation under rule
3-700(D)(1) to release items in electronic form is not subject to a “balancing test,” under which the client’s “need
for the . . . electronic [versions]” must be weighed against the “expense (both money and time) to the attorney of
having to copy and/or transfer . . . electronic [versions].”10/ The Committee discerns no support for the applicability
of a “balancing test” either in the rule itself, which is silent about the issue, or in any extrinsic evidence bearing on
the rule’s meaning.11/ In addition, the Committee notes that an attorney usually has it within his or her power to
avoid incurring any substantial expense in releasing electronic versions of the client’s papers and property by putting
in place any one of many commonly available electronic filing systems.12/
The Committee also believes that whenever an attorney is obligated by rule 3-700(D)(1) to release items in
electronic form, the attorney is not obligated to release them in any application (e.g., Word (.doc) or WordPerfect
(.wpd)) other than the application in which the attorney possesses them. That is because the attorney’s obligation is
to release items, not to create them or to change the application.13/
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9/ Cf. New Hampshire Bar Association Ethics Committee Opn. No. 2005-06/3 (2006) (concluding that, under the
New Hampshire Rules of Professional Conduct, the “contents of a client’s file would necessarily include both paper
and electronic forms of communications, documents and other records pertaining to the client”); Illinois State Bar
Association Advisory Opn. No. 01-01 (2001) (concluding to similar effect under the Illinois Rules of Professional
Conduct).
10/ Orange County Bar Association Formal Opn. No. 2005-01.
11/ Cf. New Hampshire Bar Association Ethics Committee Opn. No. 2005-06/3, supra (concluding that, under the
New Hampshire Rules of Professional Conduct, an attorney has an “obligation to provide all files pertinent to
representation of [a] client,” in “both paper and electronic forms,” “regardless of the burden that it might impose
upon the [attorney] to do so”); but cf. Illinois State Bar Association Advisory Opn. No. 01-01, supra (concluding
that, under the Illinois Rules of Professional Conduct, an attorney, upon termination of employment, may not refuse
a request by a client for electronic versions of client file materials when, among other things, electronic versions can
be retrieved easily).
12/ Cf. New Hampshire Bar Association Ethics Committee Opn. No. 2005-06/3, supra (stating that any “burden” that
might be imposed upon an attorney to “provide all files pertinent to representation of [a] client . . . can be managed
. . . through computer word search functions or other means that are routinely used for discovery or other
purposes”).
13/ Cf. Jicarilla Apache Nation v. United States (Fed.Cl. 2004) 60 Fed.Cl. 413, 416 (approving and entering a
confidentiality agreement and protective order providing for, among other things, the production of “electronic
records” “in the format in which [the producing] party routinely uses or stores them”); Cal. Rules of Court 342(i)
(providing that, “[u]pon request, a party must within 3 days provide to any other party or the court an electronic
version of its separate statement” of undisputed material facts in support of its motion for summary judgment and/or
summary adjudication, but is “not required to create an electronic version or any new version of any document for
the purpose of transmission to the requesting party”).

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3. Rule 3-700(D) Obligates Attorney A, Upon Termination of Employment, Promptly to Release to
Client, at Client’s Request, (1) the Existing Electronic Version of E-mail Correspondence, (2) the
Existing Electronic Version of the Pleadings, (3) the Existing Electronic Version of Discovery
Requests and Responses, (4) the Existing Electronic Deposition and Exhibit Database, and (5) the
Existing Electronic Version of Transactional Documents, But Only After Attorney A Takes
Reasonable Steps to Strip Such Items of Metadata Reflecting Confidential Information Belonging to
Other Clients
It follows from the foregoing that, upon termination of employment, Attorney A is presumptively obligated by rule
3-700(D)(1) promptly to release to Client, at Client’s request, an electronic version of e-mail correspondence, an
electronic version of the pleadings, an electronic version of discovery requests and responses, and the electronic
deposition and exhibit database, all in Client’s action against Landlord, and also an electronic version of the
transactional documents in the BiotechCorp matter.
Attorney A’s presumptive obligation under rule 3-700(D), however, must be considered in light of Attorney A’s
claim that each of the electronic items in question contains metadata reflecting confidential information belonging to
other clients. That is because an attorney is obligated under subdivision (e)(1) of section 6068 of the Business and
Professions Code to protect each client’s confidential information. Under the compulsion of that obligation,
Attorney A would have to take reasonable steps to strip any metadata reflecting confidential information belonging
to other clients from any of the electronic items prior to releasing them to Client.14/ Inasmuch as Attorney A has not
invoked the attorney work product doctrine, that doctrine is not implicated on the facts presented.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of
California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors,
any persons, or tribunals charged with regulatory responsibilities, or any member of the State Bar.
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14/ Cf. Illinois State Bar Association Advisory Opn. No. 01-01, supra (concluding that, under the Illinois Rules of
Professional Conduct, an attorney, upon termination of employment, may not refuse a request by a client for
electronic versions of client file materials when, among other things, electronic versions can be retrieved without
disclosing confidential information belonging to other clients).

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