This month, the Legal Ethics Committee of the District of Columbia Bar issued Ethics Opinion 341 on the review and use of metadata in electronic records. Attempting to create a compromise position on the issue of metadata mining, the committee found that a lawyer receiving electronic records from an adversary is prohibited from reviewing the records’ metadata only when he has actual knowledge that the metadata was inadvertently sent. In such cases, the receiving lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work product of the sending lawyer or confidences or secrets of that lawyer’s client. The full text of the ethics opinion can be found here.
This ethics opinion represents the latest in a series of diverging ethics decisions among different jurisdictions. The American Bar Association’s Formal Opinion 06-442 from August 5, 2006, states that "[t]he Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party." Likewise, in November 2006, the Maryland State Bar Association Committee on Ethics published its Ethics Opinion 2007-092, finding that "this Committee believes that there is no ethical violation if the recipient attorney (or those working under the attorney’s direction) reviews or makes use of the metadata without first ascertaining whether the sender intended to include such metadata.”
In contrast, the New York State Bar Association Committee on Professional Ethics, in Ethics Opinion 749 from December 14, 2001, and the Florida Bar Association Ethics Committee, in Ethics Opinion 06-02 from September 15, 2006, stated found such metadata mining to be unethical. In its more nuanced Ethics Opinion 2007-02 from March 14, 2007, the Alabama State Bar Office of the General Counsel distinguished electronic records that are exchanged among counsel, such as motions, from other electronic records. According to this opinion, “[t]he mining of metadata [from electronic records exchanged among counsel] constitutes a knowing and deliberate attempt by the recipient attorney to acquire confidential and privileged information in order to obtain an unfair advantage against an opposing party,” while the production of metadata during discovery “will ordinarily be a legal matter within the sole discretion of the courts.”