Metadata is “data about data” or “information about other information.” Web pages contain metadata–click on “view page source” or the equivalent command in your browser to see all of the behind-the-scenes code that goes into this seemingly plain, boringly-white page. The typewritten papers and memos of my college and law school careers contained no metadata other than the date and “by David Randall” (and whatever information a forensic examiner could glean from examining key impressions about the make, model, and physical characteristics of my electric typewriter), but now we leave all sorts of coded crumbs in our documents. Clicking on File|Properties while viewing a document in Microsoft Word reveals the name of the document’s author (or at least the name of the person to whom the copy of Word is registered), the document’s creation and modification dates, and other information. On a few occasions I have looked at metadata to check the provenance of a student’s paper, and learned things the student did not expect to reveal. Looking at metadata in a student paper does not violate any legally-protected right to privacy because the metadata was plainly viewable to anyone who chose to look at the document’s properties. If something is plainly viewable from where one has a right to be, there is no reasonable expectation that it will remain private.
The rules change, however, when the metadata-containing documents are attorney work product. Say Alex Attorney, representing Clarissa Client, sends draft documents to opposing counsel Betty Barrister. Betty checks out the documents’ metadata and discovers some information protected by the attorney-client privilege that gives her client an advantage. Did Alex Attorney violate rules of professional responsibility by sending documents with compromising metadata? Would Betty Barrister violate rules of professional responsibility by using the metadata? States bar associations are considering these questions. As Legal Blog Watch reports the Vermont Bar Association addressed them as follows:
Vermont joins the virtually unanimous opinion of jurisdictions that have considered the question. “Lawyers who send documents in electronic form to opposing counsel have a duty to exercise reasonable care to ensure that metadata containing confidential information protected by the attorney client privilege and the work product doctrine is not disclosed during the transmission process.” In other words, before you hit “send,” scrub out the metadata.
States are split on the duties of the receiving lawyer. Some prohibit searching for metadata, others permit it. Legal Blog Watch reports that Vermont is in the latter camp, and notes that Vermont suggests lawyers have a duty to search for metadata. ‘A rule prohibiting a search for metadata in the context of electronically transmitted documents would, in essence, represent a limit on the ability of a lawyer diligently and thoroughly to analyze material received from opposing counsel.'” The Bar Association opinion does not define the receiving lawyer’s ethical obligations if she discovers confidential information:
Whether inadvertent disclosure of privileged information constitutes a waiver of the document’s privileged status is a question of substantive law. . . It is beyond the scope of this Ethics Opinion to address what analysis the Vermont Supreme Court should adopt on the question of inadvertent disclosure.
I agree that unless an ethical rule specifically forbids it, lawyers should be able to search metadata in documents received from opposing counsel. If an ethical rule does specifically prohibit it then the rule should be changed. The duty to screen compromising metadata should fall on the attorney responsible for creating the document. Attorneys may not be in the habit of doing so because metadata is out of sight, but that’s not a principled basis for an ethical rule. Better to place the duty of metadata care in the foreground. As for the ethical implications of using confidential metadata revealed by opposing counsel, the rules for metadata should be no different than the rules governing use of confidential information discovered in the briefcase opposing counsel left by mistake in a conference room. Metadata’s novel electronic character does not require novel ethical treatment.
*With apologies to Will Rogers
^^It is my lot to be in the extremely select audience that finds my humor impossibly witty, an audience that includes my son Nate and one or two other people whose names escape me.