My co-author, Dave Fishel, wrote recently about the Florida Bar Ass'n questioning if the examination of metadata sent by opposing counsel could be considered an ethics violation. In this 2004 article (PDF) about the perils of metadata, Colorado attorney Brian Zall reports (pg 56) that a recipient attorney may have some ethical obligations, specifically the duty to report the inadvertent disclosure has occurred. Colorado has not specifically raised the question in terms of metadata, but generally in terms of inadvertent disclosures of any kind (e.g. of privileged information).
While there are many attorneys now who are aware of metadata, there are still many who have no idea what metadata is. Perhaps there should be a rule requiring the recipient of a file with damaging metadata to disclose the fact of its existence. Devious attorneys would ignore the rule, but it would at least signal that the bar doesn't condone the high-tech gamesmanship that will sometimes take place.
Perhaps there should be a rule requiring the recipient of a file with damaging metadata to disclose the fact of its existence.
Posted by: food poisoning symptoms | September 13, 2009 at 02:58 PM