By now, most lawyers have at least a passing familiarity with the term “metadata,” which refers to the hidden layer of information embedded in most electronic documents. Metadata is often described as “data about data” because it largely consists of information regarding a document’s origins, including who created it, when it was last opened, and what software was used.
But metadata can also contain more consequential data, like the record of changes made to a document, the party responsible for the changes, and any comments that may have been embedded (and later hidden) within the document.
The hidden nature of metadata makes it all too easy to inadvertently disclose work product or other privileged information. Imagine, for example, a lawyer accidentally revealing her client’s bottom line in a contract negotiation by failing to properly erase comments the client made on a draft. The results could be disastrous for both the client and the lawyer.
Given the significance of the risk, a number of bar associations have drafted ethics opinions regarding metadata. The ABA’s Legal Technology Resource Center has long hosted a comparison chart for metadata ethics opinions, and we’ve recently updated it to include three newer opinions: North Carolina, Oregon, and Washington.
The chart summarizes the various jurisdictions’ holdings on three key questions:
- What is the sender’s duty when transmitting metadata?
- May the recipient review or “mine” metadata?
- Must the recipient notify the sender if metadata is found?
Note that this chart does not address the question of metadata preservation or production in the discovery setting, which is an entirely separate issue.
To make it a bit easier to navigate the chart, we’ve also added a map that’ll allow you to jump directly to the appropriate ethics opinion by clicking on a state. If the jurisdiction has yet to issue an opinion, you’ll be taken to the ABA’s 2006 Metadata opinion.
View the comparison chart: Metadata Ethics Opinions Around the U.S.