By producing an electronic document in discovery, you may breach the attorney-client privilege, according to an ethics opinion regarding metadata issued by the District of Columbia Bar. That opinion is one of a handful of ethics opinions regarding metadata that have been decided nationwide. Attorneys must familiarize themselves with this developing and sometimes contradictory body of law to avoid potential ethics violations and ensure they protect their clients.
Metadata Defined
Metadata is information hidden in certain types of electronic documents and is automatically generated by document processing and spreadsheet programs. It includes information regarding the creation and revision of electronic documents, including the name of the document’s authors, the amount of time spent drafting the document, and hidden text comments. Deliberately searching for and viewing metadata is known as “mining.” Mining can be as simple as viewing a document’s properties or as sophisticated as viewing the document with special software designed for that purpose.
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