Mining Documents For Metadata? Be Careful!
May 31, 2007
In an utterly absurd ethics opinion, on March 14 the Alabama State Bar’s ethics panel found that “mining” for metadata to locate confidential information in “electronic documents” constitutes professional misconduct.
Alabama essentially comes out and tells counsel to look the other way when faced with a document laden with metadata, to essentially keep the wrapper on the candy bar. This is a stark contrast to the usual scope of the attorney-client privilege, which imposes on the attorney a duty to keep the confidences. Disclosing counsel is given a pass on its ethical duties regarding the secrets of clients, and the burden is passed on to a third party.
It’s important to understand just how important metadata is. I blogged on the topic of metadata on one of my other sites, and you can access the post to review on your own. But suffice to say metadata is the hidden code within a word processing document, the stuff you type and then delete before sending it along to a recipient.
How useful is it? I was once in negotiations with a creditor on a stay violation and received a formal offer of settlement. On running a program to detect metadata I found out that my opponent had significantly greater settlement authority and was trying to lowball me.
And lest you chide me for doing evil things, bear in mind that the ABA has issued a formal opinion giving the thumbs-up to a review of metadata.
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