NEW ABA ETHICS OPINION ON METADATA . . . Here's how the ABA describes its new metadata opinion in a press release: "Lawyers who receive electronic documents are free to look for and use information hidden in metadata –- information embedded in electronically produced documents –- even if the documents were provided by an opposing lawyer, according to a new ethics opinion from the American Bar Association."

Though allowing full use of metadata seems to be the only sensible view, the press release points out that "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."

The ABA's opinion is summarized in its opening paragraph:

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. 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.

In the text of the opinion, the authors note that one issue is outside its scope, namely, the issue of whether the disclosure of metadata might sometimes be considered "inadvertent," thereby obligating the person with the metadata to put the sender on notice that he has it.

I've written about the ethics of metadata at length in both weblog posts and in my Discovery Resources columns with Dennis Kennedy and Tom Mighell. Links are included below. Although the ABA ethics opinion doesn't end the debate, it's an important step forward.

Related posts here and at the Illinois Trial Practice Weblog:

1. "Electronic Discovery: Metadata Becomes a Sexy Word" (11/9/05)

2. "Avoid Embarrassment: Learn About the Metadata You're Creating" (12/28/05)

3. "Florida Bar Baffled and Upset by Metadata" (1/3/06)

4. "Legal Underground Podcast #45" (1/9/06)

5. "Electronic Discovery: The Two Flavors of Metadata" (1/27/06)

6. "Committee of Florida Bar Moves Against Metadata" (5/9/06)

7. "A New Discovery Resources Column: Metadata Revisited" (10/17/06)

Comments

[Rick Wolf]

This may be a short-sighted pronouncement of policy. The new federal rules of civil procedure on the handling of "electronically stored information" make clear that metadata is discoverable. If discoverable, I see no distinction between the obligations lawyers who read metadata embedded in a document of another without permission and lawyers who read hand-written confidential notes on a document inadvertently produced.

This debate will sharpened focus, perhaps, once the comment period begins on proposed Federal Rule of Evidence 502 over the next 60 days.

In the meantime, a best practice for avoiding inadvertent production of metadata would convert all Word documents, where possible, into PDF renditions before sending to third parties. PDF will retain the basic metadata but will remove more sensitive communications and thoughts of others collaborating on a draft. The only caveat is that even Adobe now has tools that allow comments and stickers, so the metadata debate will continue.