As we wrote earlier this year, metadata — the hidden information in electronic files — is a significant concern for lawyers. Metadata can contain important and revealing information ranging from the document’s origins to detailed records of changes and comments left during the document’s creation. If proper care isn’t taken, a lawyer can easily reveal confidential information to opposing counsel and/or third parties by circulating metadata-laced electronic files.
In June, Wisconsin joined 16 other States and the ABA in issuing an ethics opinion addressing how a lawyer’s professional responsibilities apply when handling metadata in electronic files. As with the other opinions, Wisconsin addressed several key questions:
- What is the sending attorney’s duty regarding metadata when transmitting electronic documents?
- May a receiving attorney review or “mine” an electronic document for metadata?
- Is a receiving lawyer obligated to notify the sender if he or she discovers metadata in the document?
- Wisconsin lawyers must exercise reasonable care to avoid disclosure of confidential information via metadata;
- When receiving an electronic file, a lawyer is not prohibited from searching for and reviewing metadata it may contain;
- If metadata of material significance is discovered, the recipient is obligated to notify the sender of its discovery.
A more thorough summary of each issue can be found on our comparison chart, and as always, lawyers–particularly those practicing in Wisconsin–should review the full text of the opinion (Ethics Opinion EF-12-01).