Nearly every electronic document contains metadata: embedded information that is generated during the course of its creation, editing or transmission. Metadata can reveal much about a document, including who authored, modified or viewed it and when, any edits to or comments about the document, and any content that was deleted from the final version. Metadata also may reveal confidential information or attorney work-product. For instance, sensitive information about prior clients may be embedded in contract templates, and drafts revealing litigation strategy may be hidden in briefs.
Given the potential for the production of privileged information unwittingly contained in metadata, bar associations have with increased frequency issued opinions providing guidance on what circumstances a lawyer may ethically review an adversary’s metadata. These opinions have recognized a distinction between metadata produced as part of discovery, and that transmitted outside of the discovery context. Bar associations generally agree that, with limited exceptions, sending lawyers may not strip metadata from documents to be produced in discovery and receiving lawyers may review metadata contained in such documents.[FOOTNOTE 1] Outside of the discovery context, bar associations also agree that a lawyer has a duty to strip a document of metadata before transmitting it to her adversary.[FOOTNOTE 2]
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