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Hans P. Sinha

Abstract

The ease with which documents can be transmitted over the internet via e-mail has led to the exchange of legal documents between attorneys in electronic format (generally as attachments to an e-mail) on a daily basis. While some exchanges of electronic documents occur in a formal discovery context, governed by formal rules of discovery or court-orders, the vast majority of electronic documents exchanged between attorneys occurs in the non-formal discovery context: two or more attorneys simply exchanging contract drafts, memoranda, letters—documents pertaining in one way or another to the representation of their clients—between and amongst each other. This Article examines the ethical issues these lawyers face with regard to the metadata contained in such documents. It does so by first discussing the general ethical dilemma surrounding metadata. The Article next provides an in-depth examination and critical analysis of the legal community’s view of the ethical parameters surrounding metadata, as seen through fourteen ethics opinions issued by thirteen states and the American Bar Association (ABA) as of August, 2010. An examination of these ethics opinions show that two inopossite and completely contradictory views have emerged in terms of what is ethically permissible and prohibited in an area such as the electronic exchange of documents. This is an undesirable situation for something that occurs not only on a daily basis between attorneys in the same state, but also between attorneys in different states. Recognizing this as an untenable situation in the legal profession, this Article looks to the Federal Rules of Civil Procedure and the inadvertent disclosure of confidential material in the formal discovery context, and proposes a parallel practical solution to the ethical conundrum surrounding metadata in the non-formal discovery context.

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175

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