Another Ethics Ruling on Metadata

Bob Ambrogi reports on our LegalBlogWatch: 

Is it ethical to search for metadata in a document you receive from opposing counsel? As we've reported here in the past, the American Bar Association says yes but the New York County Lawyers' Association says no. Maryland and the District of Columbia have also sided with the ABA on the issue, while Arizona, Alabama and Florida agree with New York.

Now, the Ethics Committee of the Colorado Bar Association has weighed in with a formal opinion on review of metadata and adopted the ABA's view. It says that a lawyer may ethically review a document for metadata. If, however, the lawyer discovers confidential information within the metadata, the lawyer should assume it is there inadvertently and immediately contact the sender.

Once the Receiving Lawyer has notified the Sending Lawyer, the lawyers may, as a matter of professionalism, discuss whether a waiver of privilege or confidentiality has occurred.  In some instances, the lawyers may be able to agree on how to handle the matter.  If this is not possible, then the Sending Lawyer or the Receiving Lawyer may seek a determination from a court or other tribunal as to the proper disposition of the electronic documents or files, based on the substantive law of waiver.

Notably, the Colorado ethics panel says that the states that have come out against review of metadata based their opinions "on incorrect factual premises regarding the nature of metadata." Those incorrect premises, it explains, are that all metadata are necessarily confidential and that viewing metadata is surreptitious. The opinion also emphasizes that the sending lawyer has a duty of reasonable care to be informed about the nature of metadata and the steps that should be taken to remove it.

[Hat tip to Legalethics.com.]