Summer 2010-#5. Vermont Law Firms and Metadata Policies.

Authorby Randall Farrar

Vermont Bar Journal


Summer 2010-#5.

Vermont Law Firms and Metadata Policies

THE VERMONT BAR JOURNALVolume 36, No. 2Summer 2010Vermont Law Firms and Metadata Policiesby Randall FarrarAcross the United States, including Vermont, governing bodies are drafting and issuing opinions regarding an attorney's professional responsibility regarding metadata. Historically, opinions on whether there is a significant risk with metadata and if so what must be done to address that risk have varied between attorneys, IT departments, management, bar associations, and other governing entities. With an increasing number of opinions specifically addressing an attorney's ethical obligations regarding metadata, law firms must now address their management of metadata and develop specific policies or update existing policies to ensure they are in accordance. As more states sound off on metadata and an attorney's responsibility, Vermont firms with practices in multiple states should also make sure that their policies are acceptable in every jurisdiction in which they practice.

In 2009, the Vermont Bar Association Professional Responsibility Section issued ethics Opinion 2009-1 that states: "... the Vermont Bar Association Professional Responsibility Section finds nothing to compel the conclusion that a lawyer who receives an electronic file from opposing counsel would be ethically prohibited from reviewing that file using any available tools to expose the file's content, including metadata." The Section suggests that such a rule would limit "the ability of a lawyer diligently and thoroughly to analyze material received from opposing counsel." The Section states that, under VRPC Rule4.4(b), "Vermont lawyers are subject to the obligation to notify opposing counsel if they receive documents that they know or reasonably should know were inadvertently disclosed."(fn1)

According to the opinion, Vermont attorneys have a duty to use reasonable care when transmitting metadata. Citing the "virtually unanimous" view on the topic amongst other bar associations, Vermont

agrees that, based upon the language of the [Vermont Rules of Professional Conduct], a lawyer has a duty to exercise reasonable care to ensure that confidential information protected by the attorney client privilege and the work product document is not disclosed. This duty extends to...

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