Ride the Lightning

WACKY, WACKY, WACKY: D.C. SPEAKS ON METADATA MINING

September 19, 2007

Is is ethical to mine metadata? The American Bar Association says sure. New York and Florida don’t think so. Alabama makes a strange delineation between documents exchanged between counsel and other electronic documents. Now D.C. has spoken and the nuttiness continues. The Legal Ethics Committee of the District of Columbia Bar has issued Ethics Opinion 341. A portion of the opinion reads:

"A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent. In such instances, the receiving lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work product of the sending lawyer or confidences or secrets of the sending lawyer’s client."

Actual knowledge? Who would ever have that knowledge? What about due diligence to the client, which the opinion also references? In an effort to "sorta compromise," this is just another wacky attempt to address the issue. The ABA got it right. If the sender is crazy enough to send you metadata, you can look. In this day and age, an attorney that doesn’t know enough to scrub metadata is breaching his/her duty to preserve confidentiality, period.

The opinion may be found at http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion341.cfm

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