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According to the article, several of the Florida board members hadn't heard the word "metadata" until the meeting in which they swiftly voted to take action against it.

Speaking of ethics... Is it ethical to vote to prohibit a practice about which one is clueless? Put differently: Is it unethical to cast an uninformed vote? I hope Ethical Esq. chimes in...

Prof Yabut

Mike, As you know, ethicalEsq is retired. Like myself, he believes you youngsters should be thinking harder, rather than trying to make work for us old guys.

At f/k/a, we have consistently questioned the judgment of the Florida Bar. However, in their defense here, I'd like to say:

(1) The concept of metadata is not very difficult to grasp once that very poorly named concept is explained. [So, Technomind, the decision here is about lawyer conduct far more than it is about the technology.]

(2) You don't need to understand the technology involved to think that a) it sounds unethical for lawyers to be peeking into their opponents' e-waste-baskets merely because they have the technological ability to do so; and b) lawyers owe it to their clients to take measures to prevent such spying to the extent possible.

Also, please note that the Board has asked the proper ethics authorities for ethical guidance and action, and merely given their initial (strong) reaction to the phenomena involved. Let's wait and see what the Professional Ethics Committee does before concluding that FBA has acted in a "clueless" manner.

p.s. Although many weblawgers act as if they disagree, you are right to suggest that condemning conduct as unethical, while clueless about it, is not very ethical.


Perhaps this is a question better suited for the Illinois Law Practice Blog, but I've increasingly seen discovery requests specifically demand metadata. Is there any indication that the Florida Bar is considering those ethical implications?

I was fascinated to see the number of doctors and medical researchers who were outraged over the NEJM editorial because of the fact that the editors looked at the metadata. I've been working under the assumption that someone might look at my metadata for so long that it didn't even occur to me that scientific authors would find it objectionable.


Ted: You're right that metadata is important to lawyers conducting electronic discovery. It's one more reason why the actions of the committee of the Florida Bar are hard to understand. As a lawyer requesting documents in electronic format from an opponent, you obviously want to receive the metadata too. It might be unethical not not to look at metadata, if the not-looking were due to professional incompetence.

Metadata really isn't properly defined as "hidden" objects in electronic files. If you view the page source for this weblog, you'll find metadata. Is it unethical for someone to view the page source for this weblog? I don't think so. If you look at the display on an iPod for information about the song you're playing, you're viewing the metadata that's embedded in the source mp3 file. The "show notes" that podcast creators publish either as a id3 tag or on a website is metadata about the podcast. If you look inside computer code, it often contains comments about the program. That's metadata.

Perhaps the problem comes when lawyers who don't understand what metadata is think that it's intended to be "hidden" and therefore not seen. If that were true, then looking at metadata is like cracking a safe to see what's inside. But the analogy is flawed, as is saying that metadata is stuff that's in a lawyer's "e-waste-basket."


It's fair to say that there exists metadata that qualifies as "stuff that's in a lawyer's 'e-waste-basket.'" It's also fair to say that there's a continuum of metadata ranging from the painfully obvious (a file name) to using sophisticated third-party software to reverse-engineer what previous edits were made. The problem is the vagueness of the term metadata, which wasn't designed to distinguish on these distinguishable grounds.


When I first read the article in the Florida Bar News, I thought it was absolutely ridiculous for the Bar to even consider disciplining lawyers for 'mining' metadata from docements that are voluntarily and knowingly sent to them electronically. It just doesn't seem to be an ethics issue.

I have little faith in The Florida Bar's role regulating lawyer misconduct in any event. If you're interested as to why, see my personal web page "Hill's Peek at Regulating Lawyer Misconduct" and blog called "Regulating Lawyer Misconduct in Florida: Who's Responsible?"

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