Vermont is the latest state to issue an opinion on the ethics of metadata. The various opinions always address three issues:
1. What is the responsibility of the sending attorney with respect to checking for metadata?
2. May the recipient of a document from opposing counsel review a document or “mine” it for metadata?
3. If metadata is found, must the recipient notify the sender?
Aside from legal niceties, a lot of this issue is just plain common sense. Any attorney who does not check for metadata when sending a Word file to opposing counsel is being negligent and self-destructive.
My favorite example of this happened to one of my clients (in the days before metadata had become a hot topic). His firm was using WordPerfect and received a document in Word format. Upon opening it in WP, all the changes, comments, etc. were exposed, including a comment to the effect “Jim, do you think we can get away with this language?” Needless to say, in the course of negotiating the contract terms, my client said “now, you don’t think we’re going to let you get away with that language,” and opposing counsel folded.
Saying that the recipient of a document cannot check for metadata is like the disclaimers on faxes to the effect that if you receive the fax in error you should not read it. In practice, totally useless. In many cases, all you have to do to reveal the relevant metadata is to turn on track changes (which a firm might routinely do in the process of editing a document).
If you find metadata, should you notify the sender? This is a bit more sticky: most jurisdictions (and the ABA) say that you should, and this is obviously reasonable.
But the main point in all this is that a firm is negligent if it does not use a metadata checker when sending out documents.
To see the ABA’s review of opinions,
click here.