The American Bar Association issued a press release a few days ago to publicize an ABA Ethics Opinion that states, in sum, that an attorney who receives a document with metadata from another party, may review that metadata. Hat tip to Robert Ambrogi. Here is Ambrogi’s post about it: Law.com – Inside Opinions: Legal Blogs. For those who want to read the whole ABA Opinion, click here.
Thus, if someone sends a document with metadata to the opposing side’s attorney in a matter, and does not scrub the metadata from the document before sending it, the other attorney–under the ABA Model Rules–is not required to refrain from viewing the cornucopia of information about the document in the metadata. For those who do not realize the issues raised by metadata, you are now on notice that you better learn fast. For a quick overview of metadata and its interface with legal ethics, see Jim Calloway’s January 2006 post.
Although the ABA Ethics Opinion refers to any routine email with an attached document, for example, this issue arises in the e-discovery context because metadata is often sought regarding the electronic version of documents that are subject to discovery–information that is not available on mere "hard copies".