Metadata A Client Confidence?

An ethics opinion of the New York State Bar Association Committee found that lawyers transmitting documents electronically to opposing counsel or other third parties must exercise reasonable care to prevent the disclosure of metadata that might contain client confidences. Defining metadata loosely to be "data hidden in documents that is generated during the course of creating and editing such documents," the Committee noted that metadata might include information on prior versions of the document, including recent revisions, or inserted comments reflecting strategy considerations, legal issues raised by the client, or legal advice provided by counsel. While making clear that not all of this information might be confidential or secret, the Committee noted that it might, in many circumstances, "reveal information that is either privileged or the disclosure of which would be detrimental or embarrassing to the client." Will more jurisdictions follow New York in imposing a duty to prevent disclosure of electronic metadata? We'll see.

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