Wednesday, May 09, 2007

Metadata Disclosure - Alabama Follows New York, Not ABA

The Alabama bar has issued a formal ethics opinion, in which it essentially adopts the New York position on a receiving attorney's use of inadvertently disclosed meta-data received from opposing counsel or party (i.e., Don't Do It).

This is in contrast to some of the recent trends. The ABA recently issued an opinion, Formal Opinion 06-442 (August 5, 2006)
Review and Use of Metadata. The abstract for that opinion states, "The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party." (Order a full copy of the opinion here.) This is not a specific endorsement of the use of an opponent's metadata, since it merely says the (new) rules are silent on this point. But, remember that this new opinion withdrew a former opinion that specifically condemned the activity. Remember as well that the new ABA opinion arose from a logical result of the ABA's issuance of its new Model Rules, which had removed the specific rule cited in the withdrawn opinion to justify the old position. (I'm not up to speed on whether Alabama or New York have implemented the new Model Rules.)

Regardless, Alabama and New York both hold that the lawyer who has inadvertently received metadata has a duty to avoid use of the inadvertently disclosed information. Under Alabama's rule, "Absent express authorization from a court, it is ethically impermissible for an attorney to mine metadata from an electronic document he or she inadvertently or improperly receives from another party."

They do note that the SENDING lawyer who sent the inadvertently disclosed metadata has independently violated the duty to maintain a client's confidences. On that point both the ABA and Alabama are in full agreement. So, again, if you have not yet installed good meta-data scrubbers on your own systems, do give consideration to that.

(And, of course, remember that meta-data that is embedded in a document that is itself evidence should not be scrubbed when transmitted to the other side in discovery, since the metadata is part of the evidence and to scrub the evidence would be tantamount to spoliation. This rule only applies to documents that are not themselves evidence.)

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