Ethics

Add Colorado to the growing list of states that have addressed whether lawyers can review an opponent's electronic metadata.  The Colorado Bar's ethics opinion, which was issued on May 17, 2008 (thanks to the ABA/BNA Lawyers' Manual on Professional Conduct for the pointer), concludes that a lawyer should generally be allowed to look at metadata, unless the lawyer knows or has reason to believe that the document contains privileged information.  Here's the summary:

A Receiving Lawyer who receives electronic documents or files generally may search for and review metadata.   If a Receiving Lawyer knows or reasonably should know that the metadata contain or constitute Confidential Information, the Receiving Lawyer should assume that the Confidential Information was transmitted inadvertently, unless the Receiving Lawyer knows that confidentiality has been waived.  The Receiving Lawyer must promptly notify the Sending Lawyer.  Once the Receiving Lawyer has notified the Sending Lawyer, the lawyers may, as a matter of professionalism, discuss whether a waiver of privilege or confidentiality has occurred.  In some instances, the lawyers may be able to agree on how to handle the matter.  If this is not possible, then the Sending Lawyer or the Receiving Lawyer may seek a determination from a court or other tribunal as to the proper disposition of the electronic documents or files, based on the substantive law of waiver.

As with many other opinions on this issue, the Bar cites co-blogger and metadata expert David Hricik, though I suspect David won't agree with the outcome!  My thoughts on the issue are here.  (I also tackle the subject briefly in this article.)

For those keeping track, Alabama, Florida, the New York State Bar, the New York County Bar, and Arizona have concluded that we typically shouldn't be allowed to look at metadata.  And then there's Maryland, the D.C. Bar, Colorado, and the ABA saying that a lawyer should generally be allowed to review metadata.  Finally, there's Pennsylvania, which has staked out a middle ground approach.