Metadata Snooping OK, ABA Rules
In the event it never occurred to you to strip the metadata from a document before sending it to opposing counsel, here is fresh incentive. The American Bar Association's Standing Committee on Ethics and Professional Responsibility has ruled that lawyers who receive electronic documents are free to look for and use information hidden in metadata, even if the documents were provided by an opposing lawyer. According to the ABA announcement:
"The opinion is contrary to the view of some legal ethics authorities, which have found it ethically impermissible as a matter of honesty for lawyers to search documents they receive from other lawyers for metadata or to use what they find. ...
"But the ABA committee said the only provision in the ABA Model Rules of Professional Conduct relevant to the issue merely requires a lawyer to notify the sender when the lawyer receives what the lawyer should reasonably know were inadvertently sent documents. It does not require the recipient to return those documents unread. The committee also made clear that it was not addressing situations in which documents are obtained through criminal, fraudulent, deceitful or otherwise improper conduct."
As the opinion notes, "metadata can sometimes reveal such critical information as 'who knew what when,' or negotiating strategy and positions."
I wrote on my LawSites blog in January 2005 about a free add-on from Microsoft that removes metadata from Word, Excel and PowerPoint files. You can find other tools that will do the same thing. If you don't have one, get one. For a good overview of the discussion surrounding metadata and legal ethics, see Jim Calloway's Jan. 30, 2006, post, The Mysteries (and Magic) of Metadata.
Posted by Robert J. Ambrogi on November 10, 2006 at 03:33 PM | Permalink
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