ABA issues ethics opinion that metadata mining is permissible

By: Courtney David Mills IPA Technology Director and Litigation Paralegal at Hoover Hull LLP

For the past several years, there has been a standing question about the efficacy searching opponent’s electronic files for meta-data, i.e., hidden data. It should be noted that the vast amount of meta data is irrelevant file information about when a document was created, when it was last access, when it was last printed, etc. The truly sensitive information that is most associated with horror stories about accidentally disclosure relates to tracked changes in word documents, which were not properly removed prior to sending the word document to opposing counsel or the Court.

There were essentially two schools of thought on the issue, one side (mainly the states of New York and Florida) likened the practice of meta-data mining to rifling through the desk draw of an opponent and also compared the issue to inadvertent production of privileged information, i.e. faxing the edited version of a letter with the attorney notes in the margin, rather than the finalized version of same. The other side of the debate stated that attorneys were, or should have been, well aware of issues associated with meta-data and stated that searching files for such information was part of their zealous representation of their respective clients and was simply “fair game.”

Well, after several years of conflicting opinions from state bar associations, the American Bar Association has issued an ethics opinion stating that meta-data mining is permissible. (click here for a copy of the full opinion).