The DC Bar Association has issued the following opinion on metadata, Opinion 341:

Review and Use of Metadata in Electronic Documents

A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent. In such instances, the receiving lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work product of the sending lawyer or confidences or secrets of the sending lawyer’s client.

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Ethical Propriety of Mining Metadata

DISCLOSURE AND MINING OF METADATA

QUESTION #1:

Does an attorney have an affirmative duty to take reasonable precautions to ensure that confidential metadata is properly protected from inadvertent or inappropriate production via an electronic document before it is transmitted?

ANSWER:

Lawyers have a duty under Rule 1.6 to use reasonable care when transmitting electronic documents to prevent the disclosure of metadata containing client confidences or secrets.

QUESTION #2: Is it unethical for an attorney to mine metadata from an electronic document he or she receives from another party?

ANSWER:

Absent express authorization from a court, it is ethically impermissible for an attorney to mine metadata from an electronic document he or she inadvertently or improperly receives from another party. Read the rest of this entry »

Blog entry by Michael Fleming posted on The Cyberspace Lawyer’s Blogger, May 9, 2007:  “The Alabama bar has issued a formal ethics opinion, in which it essentially adopts the New York position on a receiving attorney’s use of inadvertently disclosed meta-data received from opposing counsel or party (i.e., Don’t Do It). Read the rest of this entry »