New Legal Ethics Minefield: Metadata
Have you eliminated all metadata from electronic documents you send to opposing counsel? Do you look for metadata in the documents you receive? And, in both cases, does your approach, whatever it is, comply with applicable legal ethics standards?
The correct answers to those questions aren’t necessarily clear, but a growing body of case law is developing to address them, reports the National Law Journal.
“When I first gave a lecture on metadata four years ago, there was only [a] New York ethics opinion,” says Andrew Perlman of Suffolk University Law School. “In the last year, there has been four or five more. In the next three to four years, I expect we will see an explosion of opinions. This is just beginning.”
Along with sending a privileged fax to the wrong party and failing to hang up the speakerphone before a confidential conversation begins, lawyers—and their support staff—need to be careful not to e-mail computerized documents or send disks that contain earlier versions of the document that a computer expert can readily read, the legal publication explains. But many don’t even realize that transmitting metadata is an issue, let alone how it should be addressed.
Even sophisticated law firms can easily make mistakes with metadata, says David Hricik of Mercer University’s Walter F. George School of Law. He tells a cautionary tale, for instance, of a Word document posted online that allowed a sophisticated user, with two clicks, to determine from an earlier draft that the plaintiff had originally intended to sue a different defendant. Redacted documents produced in discovery can also pose major problems, if metadata hasn’t been fully eliminated.
Meanwhile, those who are well-aware of the issue can potentially gain a litigation advantage by discovering the original electronic version of the document, including its metadata.
For more information about the metadata minefield and ideas about how to ethically navigate it, read this
ABA Journal article.
