Ethics Watch: May a Lawyer Examine Metadata Contained in Electronic Documents?

What is Metadata?
Metadata is “data about data.”  It’s hidden in most of your documents and contains information about the document’s history.  For example, if you prepare a document and send it to colleagues who amend and comment on the document, and you then email the document to a third party, that person may be able to “mine” the document and view the amendments which were later deleted.

Is it Ethical to Examine Metadata?
Most states have addressed the issue of whether it’s ethical to examine metadata embedded in electronic discovery.  According to the Legal Ethics Forum,  states and bars have come down on the issue as follows:

Alabama, Arizona, Florida, Maine, New Hampshire, the New York State Bar, the New York County Bar, and West Virginia agree that it is unethical for attorneys to look at metadata.

Maryland, the D.C. Bar, Colorado, Pennsylvania, and the ABA have found that viewing metadata is permissible and that the burden of removing metadata lies with the attorney producing the electronic documents.

Many firms use metadata removal tools or “scrubbers” that remove private metadata from files before they are sent to third parties.

Source: Young Lawyers Blog

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