Legalethics.com

Vermont issues opinion on metadata

prfhricik — Wed, 07 Oct 2009 15:35:26 +0000

Vermont Bar Association Professional Responsibility Section Opinion 2009-1 concluded that a lawyer could “search” for metadata, but may have an obligation to notify the sender of the existence of the metadata pursuant to Rule 4.4(b)

New Hampshire Attorneys May Not Use Hidden Metadata

Peterk — Sun, 21 Jun 2009 04:35:18 +0000

New Hampshire attorneys may not search for, review, or use metadata in electronic materials received from opposing counsel. New Hampshire Bar Ass’n. Ethics Comm., Op 2008-2009/4 (April 16, 2009)

Pennslyvania Lawyers Can Examine Metadata Hidden in Documents

Peterk — Sun, 21 Jun 2009 04:31:22 +0000

Pennsylvania lawyers who receive electronic content from opposing counsel can examine metadata hidden in documents and use it for the client’s benefits. Pennsylvania Bar Ass’n, Comm. on Legal Ethics and Professn’l. Responsibility, Formal Op. 2009-100

Mercer Law School to Host e-Discovery and Ethics Conference

David Hricik — Wed, 08 Oct 2008 10:39:52 +0000

On November 7, the Law School will host the 9th annual Georgia Symposium on Professionalism and Ethics. The topic for this years symposium is “Ethics and professionalism in the Digital Age.” There will be presentations and panel discussions on e-discovery, the internet and lawyer marketing, and meta-data. The symposium will take place in the Law School Courtroom beginning at 9 a.m. on the 7th. The event is open to the public, and CLE credit will be available. For further information, contact professor Patrick Longan at (478) 301-2639 or longan_p@law.mercer.edu

Screenshots Created by Yahoo Mail and Left on Hard Drive?

David Hricik — Fri, 12 Sep 2008 10:13:09 +0000

Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006) is a fascinating case in various ways, and just came to my attention. Apparently, when a user views mail on yahoo, it takes a screenshot of the mail which is stored on the hard drive. While it’s not as easy to later access as a temp file, apparently they reside on the hard drive. I couldn’t find the opinion on line, but it was on westlaw.

Anyone who uses public computers or employer-owned laptops to communicate “in confidence” should examine this issue. I’m not sure it’s accurate, but the court clearly stated that Yahoo, alone, left these ghost emails!

Colorado Issues Metadata Opinion

David Hricik — 2060 Tue, 17 Jun 2008 03:15:43 +0000

Colorado has addressed whether lawyers can review metadata sent by opposing counsel outside the context of discovery. The summary states:

A Sending Lawyer who transmits electronic documents or files has a duty to use reasonable care to guard against the disclosure of metadata containing Confidential Information. What constitutes reasonable care will depend on the facts and circumstances. The duty to provide competent representation requires a Sending Lawyer to ensure that he or she is reasonably informed about the types of metadata that may be included in an electronic document or file and the steps that can be taken to remove metadata if necessary. Within a law firm, a supervising lawyer has a duty to ensure that appropriate systems are in place so that the supervising lawyer, any subordinate lawyers, and any nonlawyer assistants are able to control the transmission of metadata.

A Receiving Lawyer who receives electronic documents or files generally may search for and review metadata. If a Receiving Lawyer knows or reasonably should know that the metadata contain or constitute Confidential Information, the Receiving Lawyer should assume that the Confidential Information was transmitted inadvertently, unless the Receiving Lawyer knows that confidentiality has been waived. The Receiving Lawyer must promptly notify the Sending Lawyer. Once the Receiving Lawyer has notified the Sending Lawyer, the lawyers may, as a matter of professionalism, discuss whether a waiver of privilege or confidentiality has occurred. In some instances, the lawyers may be able to agree on how to handle the matter. If this is not possible, then the Sending Lawyer or the Receiving Lawyer may seek a determination from a court or other tribunal as to the proper disposition of the electronic documents or files, based on the substantive law of waiver.

If, before examining metadata in an electronic document or file, the Receiving Lawyer receives notice from the sender that Confidential Information was inadvertently included in metadata in that electronic document or file, the Receiving Lawyer must not examine the metadata and must abide by the sender’s instructions regarding the disposition of the metadata.

The full opinion, No. 119 (May 17, 2008) is here.

Another Metadata Related Gaffe

David Hricik — Wed, 28 May 2008 15:30:49 +0000

Blacking out text doesn’t erase it. But a plaintiff’s firm suing GE in a $500m class action didn’t realize that… and put a whole slew of GE confidential information in the public domain as a result. Read about it here.

New York County Bar Association Addresses Metadata

David Hricik — Sun, 20 Apr 2008 17:10:37 +0000

Another opinion, this one from the New York County Bar Association (New York County Lawyers’ Ass’n Comm. of Professional Ethics, Op. 738 (March 24, 2008)), suggests that lawyers should not look for metadata (again, we’re not talking in the discovery context). The opinion is here.

New Article on Metadata

David Hricik — Wed, 13 Feb 2008 20:07:32 +0000

David Hricik and Chase Scott have published a thorough piece on where most common software creates metadata, available here in the February 2008 Georgia Bar Journal.

Arizona Issues Metadata Opinion

David Hricik — Wed, 06 Feb 2008 15:17:08 +0000

Arizona’s bar association in Opinion 07-03 (Nov. 2007) concluded that, while lawyers must use reasonable care to “scrub” metadata from out-going documents, a recipient must generally avoid looking for inadvertently included metadata, but instead generally must notify the sender of the inclusion of metadata.