Legalethics.com

In what I’m convinced will be the norm, Alabama just joined a growing number of state opinions finding that mining metadata (outside the context of discovery) is dishonest. The opinion is here. I’ve got an article about to come out in the North Carolina Journal of Law and Technology that examines why, I believe, the ABA got this entirely wrong in concluding that it’s perfectly fine for a lawyer to take intentional steps to look for confidential information of an opposing lawyer that he knows shouldn’t be there…

David Hricik
Mercer Law School

Maryland lawyers who produce electronic materials in discovery have the processional duty to take reasonable measures to avoid the disclosure of confidential information embedded in meta-data within the document.  See Maryland State Bar Ass’n. Comm. on Ethics Op. 2007-09 (Oct 16, 2006). The Maryland committee also took the position that lawyers who receive electronic discovery materials have no ethical duty to refrain from viewing or using metadata.  The opinion noted the impact of recent amendments to the Federal Rules of Civil Procedure regarding electronic discovery will impact the obligations of lawyers. The opinion also contrasts with Florida Bar Opinion 06-02, ABA Standing Comm. on Eth. & Prof’l Resp., Formal Op. No. 06-422 (2006), and, most noteably, with NYSB Opinion 749 (a lawyer has both a duty to refrain from reviewing or using metadata and a duty to notify an adversary of inadvertent production).

Florida Ethics Opinion 06-2 states that a lawyer who is sending an electronic document should take care to ensure the confidentiality of all information contained in the document, including metadata. A lawyer receiving an electronic document should not try to obtain information from metadata that the lawyer knows or should know is not intended for the receiving lawyer. A lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information’s receipt. (Sept-15-2006)

The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party. See ABA Formal Opinion 06-442 (August 5, 2006). A lawyer who is concerned about the possibility of sending, producing, or providing to opposing counsel a document that contains or might contain metadata, or who wishes to take some action to reduce or remove the potentially harmful consequences of its dissemination, may be able to limit the likelihood of its transmission by “scrubbing” metadata from documents or by sending a different version of the document without the embedded information.

An article at Law.com, What’s a Little Metadata Mining Between Colleagues? discusses the Florida bar association’s interest in examining meta-data mining issues.

On January 6, the Florida Bar took the position that mining metadata is unethical.

The New York Bar Association acknowledges in an ethics opinion 782 that under some circumstances there may be a duty to avoid disclosure of metadata and similar hidden information. (December 8, 2004).

Microsoft has announced a new software add-on — “remove hidden data tool” – that, purportedly, will remove meta-data from Word documents, a problem discussed in the article noted below. Microsoft’s instructions for security as well as its security updates and patches (which are posted frequently) are all on line.

An article co-authored by Professor David Hricik of Mercer Law School, discusses meta-data and notes that at least one bar association has said that lawyers may not review meta-data that often accompanies Word documents.