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Tuesday, February 26, 2008
Law - Metadata, can you get it, can you use it?
Marcia Coyle of The National Law Journal reported an interesting story on metadata last week. Some quotes from the long survey article:
All of the state bars to address the metadata issue agree that a sending lawyer has a duty to protect confidential or privileged information from being disclosed, but they split on the duty of a receiving attorney.This ILB entry from Feb. 12, 2007 links to a Res Gestae article by Donald R. Lundberg, titled "Mining for Metadata: Ethics Questions Surrounding Inadvertently Sent Embedded Data."The New York State Bar Association in 2001 determined that lawyers may not "intentional[ly] use ... computer technology to surreptitiously obtain privileged or other confidential information" of an opposing party.
Florida, Alabama and most recently Arizona have joined New York in holding that the recipient lawyer has a duty not to "mine" the document for metadata or otherwise engage in conduct that amounts to an unjustified intrusion into the client-lawyer relationship that exists between the opposing party and his or her counsel.
Florida states that a lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information's receipt.
The District of Columbia holds that a receiving lawyer is prohibited from reviewing metadata sent by an adversary only when he or she has actual knowledge that the metadata was sent inadvertently. If the recipient lawyer has actual knowledge, he or she may not review the metadata without first consulting with the sending lawyer.
Maryland and the American Bar Association have concluded that their ethical rules do not prohibit the mining of metadata. * * *
At the federal level, the metadata situation is not much clearer, although the new rules on electronic discovery have raised the profile of metadata, noted Mighell.
"They allow the requesting party to ask for documents in a format of their choice," he said.
"I don't know if you can ask for metadata, but my recommendation would be to ask for a document in its native file, with metadata intact. Then the lawyers have to go and squabble over whether they really do want the metadata."
The ILB entry also mentions "a state agency using the possibility of the existence of metadata as a reason to resist providing digital copies of public documents." Subsequently, the ILB requested and received a public access counselor opinion on this issue.
Posted by Marcia Oddi on February 26, 2008 06:31 PM
Posted to General Law Related