Mining Metadata
This month's edition of the ABA's Litigation News reports ($$$, reg.) on an ABA Ethics Opinion addressing lawyers' mining of metadata. First things first, defined most broadly, metadata is, quite simply, data about data. (Wikipedia offers an extended definition). Defined for present purposes, metadata is information that an electronic document contains apart from substantive content, such as authorship, creation time, editing time, changes made, and a host of additional information that you, as a savvy lawyer, may not want your adversary to see.
There are various programs available that allow the recipient of an electronic document to mine and discover associated metadata. Given that the metadata does not form any part of the document's content, is the mining of metadata ethical? Well, the ABA Standing Committee on Ethics says sure:
[T]he 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.
There you have it. Mine away, right? Not so fast. Various state bars, including New York (here and here) and Florida have concluded that metadata mining could violate state ethics rules. As far as I know, Pennsylvania has not weighed in on this point, but I would approach the issue with caution. As for your documents, best to scrub them clean before sending them to anyone.
Finally, it is important to distinguish between litigation documents (e.g. motions, briefs and routine correspondence with opposing counsel) and electronic documents produced by parties during discovery. There is no ethical issue with mining metadata from the latter. As for stripping metadata from such materials prior to production, it is unclear whether new federal electronic discovery rules require parties to preserve and produce it intact (I'll have say more about this in a forthcoming post) .
n.b. The Ethics Opinion quoted above is Formal Opinion No. 06-442, issued in August 2006. If you want to read it in full, you must buy it from the ABA. My sense is that, because the ABA itself didn't bother to report on it until March 2007, I've probably told you everything you need to know.
