Thinking Ethics Metadata: What You Can't See May Hurt You, 100112 KSBJ, Vol. 81 J. Kan. Bar Assn 9, 14 (2013)

Thinking Ethics Metadata: What You Can't See May Hurt You

Vol. 81 J. Kan. Bar Assn 9, 14 (2013)

Kansas Bar Journal

October 1, 2012

David S. Rubenstein, Washburn University School of Law, Topeka

Professional standards are trying to keep pace with technological advancements. One evolutionary strand of this movement involves the transmission and retrieval of "metadata." Loosely defined, metadata is information embedded in electronic documents. It is generally hidden from plain view except to those looking for it. Metadata takes a variety of forms, including the date the document was created, who worked on the document and when, prior revisions made to the document, and any comments made in the document by its reviewers. Most of the time, nobody cares much about metadata (which is why it's hidden from plain view, and is why you might not have cared to pay much attention to it before). But, if you transmit electronic documents to opposing counsel or to third parties outside of the attorney-client relationship, keep reading. Electronic documents created in Word, Excel, and similar programs may contain metadata that reveal client communications, litigation and negotiation strategy, attorney work product, or other privileged information.

The inadvertent transmission of otherwise privileged metadata can occur in any number of familiar contexts. For example, a lawyer might draft a document (e.g., motion, contract, settlement agreement) and circulate the draft electronically to a client or other lawyers in the firm for comments and suggested revisions. Unless proper precautions are taken, those comments and edits — even if rejected or hidden by the originating lawyer - become embedded in the document and can be discovered by opposing counsel when the document is forwarded on.

The transmission of non-evidentiary^[1] electronic documents raises at least three questions of professional responsibility: First, to what extent is the sending lawyer obligated to prevent the inadvertent disclosure of privileged metadata; second, to what extent may a lawyer who receives an electronic document search (or "mine") it for metadata; and, third, what are the obligations of the receiving lawyer who finds otherwise privileged metadata? The Kansas Bar Association has not (yet) taken a formal position on any of these questions specifically. However, the American Bar Association (ABA) and at least 13 other state bar associations have done so, with a...