Metadata — information about a document's properties and history — is embedded in most electronic documents. It can identify when a document was created, who created it, whether changes were made or comments inserted, and what those changes and comments were. Metadata can be a treasure trove of relevant information, but also a trap for the unwary. Consider, for example, the drafting of settlement agreements. An attorney may transmit an electronic version of a settlement agreement to a client who inserts changes and comments. The attorney may later accept the client's changes and transmit the document electronically to opposing counsel. Unless the document is "scrubbed," the client's proposed changes and comments are embedded in the electronic document and therefore accessible to the receiving attorney. Weighing in on ethical duties related to metadata, the ABA Committee on Ethics has determined that the receiving attorney's only obligation in this circumstance is to notify the sender of the inadvertently disclosed information. The Model Rules of Ethics do not prevent the receiving attorney from using or reviewing the metadata in materials exchanged outside the "discovery" process. By contrast, metadata in discovery documents is subject to federal procedural rules that limit a receiving party's ability to use inadvertently disclosed attorney work product and attorney-client communications.
Under the ABA Rules of Ethics, the message is clear: attorneys who send electronic documents to adverse parties must regularly "scrub" them to avoid inadvertent disclosure of sensitive metadata. For information on avoiding a metadata disaster, see: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id= 1156340413865