E-Discovery Update: ABA Ethics Opinion Approves of Metadata Use

By Kevin Fayle, 

A new ethics opinion from the American Bar Association has set standards for attorneys confronted with the dangerous and controversial issue of metadata included in electronic documents. According to the ABA, attorneys may search for and use information contained in metadata, even if the documents originated with opposing counsel.

"Metadata" refers to information about a document other than the actual contents of the document itself. Common metadata, for example, include the date and time a file was last modified, the author's name, the date the document was created, and any comments or annotations that were added by users along the way. This kind of information can aid attorneys immensely in preparations for litigation or negotiations, as it may tell more of a story than the actual documents themselves.

Many legal commentators have decried the search for, and use of, metadata. Under the new Federal Rules of Civil Procedure governing E-Discovery that went into effect on December 1, 2006, however, the push is to produce documents in their native formats, which will only increase the amount of metadata flowing between parties. Indeed, at least one federal court has ruled that a party must produce documents with the metadata intact when ordered to supply documents produced in the normal course of business. Williams v. Sprint/United Mgmt. Co., 2005 WL 2401626 (D. Kan. Sept. 29, 2005). Parties may negotiate to exclude metadata from produced documents in the obligatory meet and confer under the new rules, but without an agreement to that effect the parties must produce the metadata.

If the parties have agreed to strip documents of metadata, but some metadata is still produced, the ABA's interpretation is that the receiving party is free to use whatever they find. If the information is somehow privileged, the new federal rules allow for sequestration or "claw-back" of the documents. The ABA would also still require that the receiving party inform the sender of any documents that the recipient should reasonable know were inadvertently sent. The ABA does not require the recipient to return the documents - or the metadata - unread, however.

The ABA suggests that lawyers filter out, or "scrub", metadata in documents before sending them. This can invite sanctions if the removal of metadata was not previously negotiated, however. The first step towards limiting opposing counsel's use of your client's metadata is to negotiate an agreement with opposing parties about the forms of production and inclusion of metadata. Attorneys should also attempt to negotiate confidentiality agreements or protective orders that cover metadata, or object to the production of metadata before the judge.

If all parties can agree to exclude metadata, there are several ways to limit what goes out hidden underneath your documents. There are many ways to scrub metadata, and several of the best are listed in this article. If the parties decide to produce documents in PDF form, the new version of Adobe Acrobat also contains many new tools to help attorneys avoid an inadvertent disclosure.

The ABA's new ethics opinion definitely raises the stakes in the world of e-discovery by alleviating ethical concerns over the use of hidden information. It is now vitally important for attorneys to educate themselves about what metadata lurks behind their documents and negotiate or argue against its inclusion. Of course, on the flip side, attorneys might also want to argue for the inclusion of metadata as a new aid in the search for the proverbial smoking gun.

After all, the metadata is out there - and the ABA has just given attorneys the green light to put it to use.

Electronic Discovery

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