The North Carolina State Bar has proposed an Ethics Opinion on whether a lawyer can look for and use metadata contained in a electronic communication from another party or that party’s lawyer.

If Ethics Opinion 1 is approved, is would place affirmative obligations on not only the recipient of the data, but also its sender. In others words both parties are responsible for the metadata.

The Gist…

Obligations On Sending Lawyers

• The sending party of the email or electronic version of the document needs to “use reasonable care to prevent the disclosure of confidential client information.” Com ‘on that doesn’t happen anymore…

• Warns you to be careful of word processing software that tracks changes, allows comments, or permits the saving of multiple versions of a document. (Microsoft is thinking about bringing "versions" back in Office 2010). They forgot to mention all the author and identifier metadata in Microsoft Office documents, and the new metadata in Office 2007.

• The Opinion says that lawyers should use scrubbing (ironically that word came into use after the release of iScrub) applications that delete metadata, or avoid metadata altogether by sending fax transmissions or hard copies of documents.

  Ok since nobody under the age of 55 (had to pick a number older than me) sends faxes or hard copies anymore… get a metadata management application.

  And if you totally trust the opposing counsel, because they’re looking out for your best interests, then forget investing in a metadata management application. In these turbulent economical times you’ll save your firm money.

Obligations On Receiving Lawyers

• Opinion prohibits a lawyer receiving electronic email or document from searching for or using confidential information contained in the metadata in the document (yea right!). If the recipient "unintentionally" views hidden metadata, he or she must notify the sender of that fact.

  In other words if you accidentally (unintentionally) click the view metadata button in iScrub, you have to tell the sending party you’ve seen all the embarrassing stuff they left in the document and then the sending party has to tell their client that the opposing lawyers went through their underwear drawer and its now on YouTube.

• The Proposed Opinion doesn’t apply, of course, to documents produced in response to a subpoena or a discovery request.

  Of course! Then, if you’re on the offence, you can look at their metadata all day long and use iScrub to print out metadata reports.

It’s still open season on metadata…

Read the actual article…

Last Modified : September 10th, 2009 Filed under : General, Metadata Navigate : Previous post / Next post