Committee on Professional Ethics
Topic: Searching inadvertently sent metadata in opposing counsel’s electronic documents
From the digest:
“A lawyer who receives from an adversary electronic documents that appear to contain inadvertently produced metadata is ethically obligated to avoid searching the metadata in those documents. (…) Using the metadata is appropriate in circumstances where the adversary has intentionally sent it, such as where the lawyers are using tracked changes to show one another their changes to a document. Without such a prior course of conduct to the contrary, however, there is a presumption that disclosure of metadata is inadvertent and would be unethical to view.”
ABA Model Rules: DR 1-102(A)(4), DR 1-102(A)(5), DR 4-101; EC 4-1; EC 7-1, DR 7-101, DR 7-102(A)(8)
The full text of the opinion is available at https://www.nycla.org…