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Does Your Lawyer Know What Metadata Is?

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I hear far too many lawyers say, “I don’t understand technology. I do just fine with the telephone and my legal assistant.” This is a far more dangerous situation than “I don’t need no stinkin’ email.”

As a public librarian, I’m in favor of self-help and I know my way around a law library, but I’m also smart enough to know when to hire lawyers (and doctors). And I sure want to know the professionals I hire to protect my legal interests also know how to protect my privacy interests. If there is a computer in the law office, but no one who knows about protecting data, let alone understanding how those computers work … well …. good grief.

Not knowing about scrubbing legal documents submitted electronically could lead to a Bad Outcome, for all. And, it can be as fatal to clients (their cases and their privacy) as it is to that lawyer (or public servant or financial advisor or bank or doctor) who doesn’t lock up paper files or encrypt electronic data. (And why DO we keep hearing about custodians of personal records leaving laptops, with unencrypted data, unattended in garages, driveways, cars, airplanes, etc.?)

Metadata – What Is It and What Are My Ethical Duties?, By Jim Calloway, LLRX, January 5, 2009

Excerpt:

An attorney looks in his inbox and finds a long-awaited settlement proposal from opposing counsel attached to an e-mail. The attorney opens the document and hits the print command. While the document is printing, the attorney eagerly looks at the monitor for details. “Good, the settlement figure is probably still too high, but very close to reasonable.” The document is quite short, actually. How long could drafting it have taken? Idly, the attorney clicks on the properties tab and sees the document was open on opposing counsel’s computer for three hours.

“Wait,” the attorney thinks. “Didn’t I get that metadata scrubber utility? ….

The lawyer sits up with a cold chill, quickly closing the document. Then he stands up and starts pacing the room. What had the lawyer done? What was the lawyer supposed to do going forward? Was there something wrong with taking advantage of this information? Why does he already feel guilty? Finally, with a flash of anger, he thinks, “Why was that opposing lawyer dumb enough to send me that information?”

As the above example should illustrate, every lawyer needs to understand a few basic things about metadata. The legal ethics implications of metadata “mining” are no longer just of interest to the lawyers processing electronic discovery or the ethics mavens….” (link to full article)

On the other hand (and there is always another hand!), read this article about metadata and discovery: FRCP And MetaData – Avoid The Lurking E-Discovery Disaster, by Dennis Kennedy, in the Metropolitan Corporate Counsel and these blog posts. Or just do a literature search on discovery and metadata and prepare to do some hard thinking.

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One response to “Does Your Lawyer Know What Metadata Is?”

  1. Seth says:

    Good post Laura. The general practice in Oregon seems to be following the rule on inadvertently disclosed privileged discovery material, don’t review it, contact the other lawyer and wait for their instructions. But you can’t erase someone’s mental impressions. And as the LLRX article notes there is no consistency among the states.

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