ABA Approves Use of Hidden Metadata

In a recent Ethics Committee Opinion from the American Bar Association (“ABA”), lawyers who receive electronic documents are allowed to examine and use hidden metadata information, even if the sender is opposing counsel. Metadata is defined as information buried in electronically produced documents. Thus, inadvertently disclosed metadata containing privileged information, work product, or both, are fair game for examination and use by opposing counsel. The ABA Model Rules of Professional Conduct only require the recipient lawyer to notify the sender if the recipient lawyer should reasonably know the documents were sent by mistake.

Sources of Metadata include, but are not limited to, the following:

Last date and time a document was saved;
Who saved the data;
When the document was created;
The name of the computer owner;
Comments and changes made to the document.

The Committee did recognize that potentially critical information could be revealed in disclosed metadata, e.g. negotiating strategies. However, according to the Committee, the best defense against disclosing metadata is to avoid transmitting the information. The burden of prevention is upon the sending lawyer. Therefore, the Committee provides suggestions on how to reduce the transmission of potentially damaging metadata. For example, the Committee recommends providing the recipient with an alternative format of the document, such as a hard or faxed copy. Additional preventive measures such as “scrubbing” out metadata prior to transmission, avoiding use of the “redlining” function when making corrections, and using confidentiality agreements between the parties, were amongst the Committee’s suggestions.

For additional information, visit:

http://www.abanet.org/abanet/media/release/news_release.cfm?releaseid=48

Volume IV

ABA Approves Use of Hidden Metadata