The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility has recently issued Formal Opinion, 2007-500, on the subject or mining metadata received in materials furnished by opposing counsel.
Metadata is information embeded within electronic documents that may not be viewed in a printed version of the document. It may include information about the creation of the document including information about the author, date, time or location where it was created. Metadata may also contain information deleted from earlier versions of the document, or information contained in comments made by reviewers during the document's creation.
The Committee concluded that, under the Pennsylvania Rules of Professional Conduct, each attorney must determine for himself or herself whether to utilize the metadata contained in documents and other electronic files based upon the lawyer’s judgment and the particular factual situation.
This determination should be based upon the nature of the information received, how and from whom the information was received, attorney-client privilege and work product rules, and common sense, reciprocity and professional courtesy.
Although the waiver of the attorney-client privilege with respect to privileged and confidential materials is a matter for judicial determination, the Committee believed that the inadvertent transmissions of such materials should not constitute a waiver of the privilege, except in the case of extreme carelessness or indifference.
The Committee noted that there is no specific Pennsylvania Rule of Professional Conduct determining the ethical obligations of a lawyer receiving inadvertently transmitted metadata from another lawyer, his client or other third person; and, there is no specific Pennsylvania Rule of Professional Conduct requiring the receiving lawyer to assess whether the opposing lawyer has violated any ethical obligation to the lawyer's client.
In reaching its conclusion, the Committee reviewed decisions from other jurisdictions in light of the existing rules in Pennsylvania.
The Opinion is available to Pennsylvania Bar Association members on the PA Bar Association website at the link below.
PA Bar Association Ethics Opinions
