U.S. Lawyers Allowed to Snoop on Hidden Metadata

The American Bar Association (ABA) has ruled that lawyers are allowed to look at and use the hidden metadata that may have been inadvertently included in electronic legal documents they receive, even if sent to them by mistake by opposing counsel.

In a press release dated November 9, 2006, the ABA says this is OK even if this is "contrary to the view of some legal ethics authorities".

The ABA does state that the recipient has an obligation to notify the other party that the documents have been received, but: "It does not require the recipient to return those documents unread. The committee also made clear that it was not addressing situations in which documents are obtained through criminal, fraudulent, deceitful or otherwise improper conduct."

This is a follow-up to earlier Library Boy posts about the "dangers" of hidden metadata in legal documents that can reveal who authored and modified them, what those modifications, comments, additions and deletions were, who was sent them, etc.:

• Metadata in Word Documents Can be a Legal Minefield (May 12, 2005): "Could it be that Law Society regulations prohibit lawyers from taking advantage of another lawyer's lack of sophistication or of another lawyer's error, where that error is to divulge privileged or confidential information via metadata? In other words, if a non-tech-savvy lawyer e-mails a contract, and if that contract contains hidden text or comments or track changes that give away his or her client's negotiating tactics or position, or the client's questions or comments, is there an obligation on the part of the recipient lawyer to avoid opening the document?"
• Avoiding Problems with Hidden Document Metadata (February 6, 2006): "SiliconValley.com, an offshoot of the San Jose Mercury News, printed an article on Feb. 3 entitled Stronger efforts being made against embarrassing document 'metadata' (...) The article explains that examining the metadata in a word processing document exposed how pharma giant Merck had tried to mask data showing the connection between the drug Vioxx and heart attacks. Very embarrassing. As well, 'a United Nations report on the assassination of former Lebanese Prime Minster Rafik Hariri developed new layers of intrigue when it was revealed that damaging accusations about Syria's involvement had been removed before publication'."
• Dealing with the "Meta Menace" (September 6, 2006): "Problems can arise if law firms send files to clients or opposing counsel that still contains markup. It may as well be hard copy full of sticky notes. Consequences may include a compromised bargaining position and violations of the Rules of Professional Conduct and the Personal Information Protection and Electronic Documents Act (PIPEDA). Laws governing metadata are still in their infancy, but early precedents permit tech-savvy counsellors to freely read any metadata they find, much as they would a forgotten sticky"