Metadata refers to information embedded in electronic documents, such as date of creation, author of the document, changes made to the document, author and date of changes, when the document was last saved, and comments to the document. In ABA Formal Opinion #06-422, the ABA Committee advised that a lawyer who received a document from opposing counsel in connection with a matter could ethically access and review the metadata contained in the document. The committee concluded that no rule specifically prohibited a lawyer from examining the metadata. It decided that Rule 4.4(b) dealing with inadvertently produced material did not apply because a document sent to opposing counsel was not done inadvertently.
Ethics committee in some states have taken a different view from the ABA committee on review of metadata, relying on the principle that examination of metadata by opposing counsel is a form of dishonesty. See the opinions in New York and Florida cited in the ABA Opinion at note 7. The South Carolina Ethics Committee has not advised on the issue. If a lawyer is appearing in a matter in another jurisdiction, the rules of the jurisdiction in which the tribunal sits will apply. See SCRPC 8.5(b)(1). Given this split in authority, lawyers should take reasonable precautions to protect from disclosure the metadata in their documents. The ABA committee observed that counsel sending a document could take a variety of steps to avoid revealing metadata, including use of scrubbing programs. Such programs are widely available on the market, and prudent counsel will use one of them before sending a document. Of course, as the ABA committee noted, if the original of a document is demanded in discovery, the lawyer could not ethically scrub the document (if scrub has not been already done of course) although the lawyer could object to production of metadata that would reveal privileged information. See ABA Opinion #06-422 at n. 13. For a good article on types of metadata and scrubbing techniques see Robert Brownstone, Metadata: To Scrub Or, Cal. Bar J. (Feb. 2008).
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