More than 10 years ago, at a time when much uncertainty surrounded issues related to electronic documents, the New York State Bar Association Committee on Professional Ethics (the New York Committee) issued one of the first opinions addressing a lawyer's ethical obligations concerning metadata.1 In New York Opinion 749, issued in December 2001, the New York Committee concluded that under the New York Code of Professional Responsibility, lawyers may not make use of computer software applications to "surreptitiously examine" the metadata of electronic documents. In 2006, the American Bar Association Standing Committee on Ethics and Professional Responsibility reached a different conclusion, finding that the Model Rules of Professional Conduct do not prohibit a lawyer from reviewing and using the metadata contained in electronic documents.2
Both organizations recognize that these opinions are in conflict,3 and that this conflict creates uncertainty and disadvantages for New York lawyers who also practice in Model Rules jurisdictions. Over the past decade, lawyers have grown far more familiar with and comfortable with e-discovery issues in general and with metadata in particular. And while both the Model Rules and New York's governing ethical rules have changed over the years, the core conflict in ethical rules regarding metadata still exists. As a result, the time has come for the New York Committee to reconsider its opinion barring attorneys from reviewing metadata in electronic documents.
New York Committee's Position
Metadata is "information describing the history, tracking or management of an electronic document."4 The metadata addressed by the New York and ABA Committees is metadata associated with software applications—the type of metadata that moves with (and may be considered part of) an electronic document. Microsoft Office documents in Windows 7, for example, have more than 100 different metadata fields available. The metadata "fields" associated with any particular software varies but often includes, for example, the date a document was created and the author who created the document. Electronic documents may also contain other hidden information often considered metadata, such as "track changes" information, embedded comments, formulas in Microsoft Excel documents, and "speaker notes" in Microsoft Power Point documents.
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By: Michael B. de Leeuw and Eric A. Hirsch