Why Shouldn't Attorneys Be Allowed to View Metadata?: A Proposal for Allowing Attorneys to View Metadata as Long as Extraordinary Measures Are Not Taken to Do So and Opposing Counsel is Contacted Upon Discovery of Sensitive Information

Michael W. Loudenslager, Appalachian School of Law

Abstract

This article deals with the issue of receiving attorneys viewing what is termed the “metadata” of electronic documents transmitted by opposing counsel outside the context of litigation. Various ethics panels in the United States have come to differing conclusions on this issue. Metadata generally consists of data that computer word processing software creates in order for users to be able to access, store, and revise electronic documents and can include, among other things, information stored and retained in the “Comments” and “Track Changes” functions of word processing software. The article concludes that receiving attorneys should be allowed to view such metadata as long as the attorney does not use extraordinary measures, such as sophisticated computer software, to retrieve information that the sending attorney took affirmative action to remove or delete prior to transmission of the document. However, the article decides that once a receiving attorney discovers sensitive information in the metadata that the attorney should know was inadvertently included, the receiving attorney has a duty under the Model Rules of Professional Conduct to inform the sending attorney of this discovery. In this manner, the sending attorney is made aware of the disclosure that has occurred and may attempt to take protective measures to prevent further disclosure of the information concerned. Nevertheless, this article determines that a good argument exists that the inclusion of such information in metadata that the receiving attorney did not have to use extraordinary measures to access waives any applicable attorney-client privilege or work-product protection.

No Model Rule proscribes an attorney from viewing metadata contained in an electronic document forwarded by opposing counsel. Furthermore, claims that the receiving attorney has a duty to preserve the confidentiality of an opponent’s information are illusory at best. Neither does an attorney who views metadata without the use of extraordinary measures engage in egregious conduct that violates a clearly established norm of the legal profession. The use of new technologies in the practice of law often require that attorneys change their patterns and practices. Therefore, the common use of word processing software and e-mail to create and transmit law practice documents necessitates that attorneys put procedures in place to ensure that sensitive information is removed from the metadata of such documents prior to transmission to the other side. If it is known that the receiving attorney can view the metadata in electronic documents, sending attorneys will have a strong incentive to put such safeguards in place.