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An Ethical Dilemma: Is it Okay to Look for Metadata in Another Attorney?s Documents?

Hedda Litwin, Cybercrime Counsel

Hedda Litwin, NAAG Cybercrime Counsel

First of all, what is metadata, anyway? Metadata is electronically stored information about a document, usually invisible to the naked eye, that contains the attributes of the document, such as who created it, when was it created, how was it modified and by whom, as well as the date of last modification. Sounds innocent enough, right? That’s often the case, but sometimes metadata can be extremely helpful to an attorney on the opposite side.

Suppose your office is working on an amicus brief with other states. A draft is sent by e-mail attachment to all of the state colleagues working on the brief, so they can make changes or comments they deem appropriate. The brief is finalized and filed. If a copy is sent to opposing counsel by e-mail, it may be possible for him or her to access the metadata with those comments and changes.

But is it ethical for that attorney to access the metadata? Some state bars have addressed the issue, with varying results. The New York bar, one of the first to weigh in, concluded that the use of computer technology to access another client’s confidential information revealed in metadata constitutes “an impermissible intrusion on the attorney-client relationship.” Several other state bar association opinions followed along similar lines. In 2006, the American Bar Association came out with an opposite opinion, finding that attorneys who receive electronic documents are free to look for and use information hidden in metadata, even if the documents were provided by an opposing lawyer. Pennsylvania’s bar committee concluded that it would be difficult to establish a rule applicable to all circumstances, so it left the final determination of how to address inadvertent disclosure of metadata to the individual attorney and the relevant facts.

So what should you as a prudent attorney do to prevent the disclosure of metadata in your own documents? The easiest way is to not create it in the first place. Re-save the document to a floppy disk or flash drive using “Save as” and then use this copy to distribute to the other side. Using Microsoft Word, you can also remove personal information about you and your computer by going to the “Tools” menu, selecting “Options” and then selecting “Security,” where you can select the privacy option of “remove personal information from file properties on save.” Another technique is to once again select “Tools” and then “Options” but this time select “save” and then ensure that the “allow fast saves” option is not selected which can leave hidden data in the document.

The best thing you can do, however, is to understand more about the electronic documents you are working with. Whether you work on criminal appeals, corrections litigation or civil enforcement, you will need to know your data and the data in your data.

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