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Journal of Technology Law & Policy

Document Type

Article

Abstract

This Article deals with the issue of receiving attorneys viewing what is termed the “metadata” of electronic documents transmitted by opposing counsel outside the context of litigation. Thus, the Article deals mainly with the ethical duties of attorneys who examine the metadata contained in agreements that parties are in the process of negotiating and are transmitted between party attorneys in electronic form. The Article concludes that receiving attorneys, in fact, should be allowed to view such metadata as long as the attorney does not take extraordinary measures to retrieve information that the sending attorney took affirmative action to remove or delete prior to transmission of the document. However, the Article decides that once a receiving attorney discovers sensitive information in the metadata that the attorney should know was inadvertently, the receiving attorney has a duty to inform the sending attorney of this discovery. In this manner, the sending attorney is made aware of the disclosure that has occurred and may attempt to take protective measures to prevent further disclosure of the information concerned. Nevertheless, this Article determines that the inclusion of such information in metadata arguably waives any applicable attorney-client privilege or work-product protection, especially if the receiving attorney did not have to use extraordinary measures to access this information.

This Article reaches these conclusions first by discussing what metadata is and the available methods for getting rid of metadata from electronic documents. The Article then discusses the provisions of the Model Rules of Professional Conduct that potentially apply to a receiving attorney viewing the metadata contained in an electronic document forwarded by opposing counsel. The Article goes on to explain the various approaches to the issue that ethics panels have taken to date. The Article then explains the current state of the law with regard to when an inadvertent disclosure may waive the attorney-client privilege and work-product protection and applies this to the inclusion of such information in the metadata of electronic documents forwarded to opposing counsel. The Article then presents the arguments for allowing receiving attorneys to view the metadata of electronic documents transmitted by opposing counsel as long as the receiving attorney does not use extraordinary measures in doing so. The Article ends with a brief conclusion.

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