Intellectual Property Law

The IP Blawg reported last June on an ethics case out of New York where lawyers were held to have a reasonable duty of care to prevent the transmission of metadata ? hidden electronic data that is generated in the course of creating and editing a document ? that might disclose a client confidence.  Now comes Formal Opinion 06-442 from the American Bar Association?s Standing Committee on Ethics and Professional Responsibility stating that lawyers who receive electronic documents are free to look for and use information hidden in metadata, even where the documents were provided by opposing counsel.  Of course, this assumes that the receiving lawyer acted lawfully and ethically in obtaining the electronic documents in the first place. 

The ABA Opinion also references the 2005 New York opinion, and notes that ?whether the sending or producing lawyer acted competently in any given factual scenario is beyond the scope of [the ABA] opinion.?   Nevertheless, the Opinion goes on to point out that there are various ways that attorneys can limit the likelihood of transmitting metadata in the first place:  from minimizing the creation of it by avoiding the use of redlining, or not utilizing the ?comments? function in software, or by the complete scrubbing of embedded metadata from documents before they are transmitted to others. 

As we?ve reported previously, the new Federal Rules of Civil Procedure relating to electronic discovery are scheduled to take effect on December 1, 2006, and contain provisions allowing a producing party to ?pull back? privileged information and work product under some circumstances.  Will that come to include metadata?  Stay tuned to the IP Blawg for updates on the topic.

Today?s Blogger:  Nan Joesten