Tuesday, November 28, 2006
by Mike Frisch
The Lawyers Manual on Professional Conduct (Nov. 15, 2006) has a description of ABA Ethics Opinion No. 06-442, holding that the Model Rules do not prohibit lawyers from reviewing and using metadata embedded in email and other electronic documents received from opposing counsel or adverse parties. Attorneys who trasmit such documents are cautioned to take appropriate steps (described in the opinion) to reduce the risk of "mining" the documents for information.
The ABA's summary is reproduced below:
Formal Opinion 06-442
August 5, 2006
Review and Use of Metadata order here
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. A lawyer who is concerned about the possibility of sending, producing, or providing to opposing counsel a document that contains or might contain metadata, or who wishes to take some action to reduce or remove the potentially harmful consequences of its dissemination, may be able to limit the likelihood of its transmission by “scrubbing” metadata from documents or by sending a different version of the document without the embedded information.