Professor Andrew Cavo explores this question in a recent article available here. The abstract is here:
Imagine the following extreme scenario: you represent the defendant in a contract dispute. A junior associate at the plaintiff’s firm sends you a Microsoft Word document that purports to represent the plaintiff’s final, pay-it-or-we-go-to-trial settlement demand: $10 million. But you believe the plaintiff would actually be willing to settle for far less. So, in a frenzy of zealous representation, you 'mine for metadata'; that is, you deliberately search that document’s hidden or embedded information. A few mouse clicks reveal a wealth of information: when the document was created, who worked on it, for how long…a few more clicks and…what’s this?! You are now looking at the same document, but it suddenly includes comments in the margins, made during the document’s editing process! One of those comments is from the partner overseeing the case and it reads, 'We’ll tell them $10 million for now, but that’s just to feel them out. Our actual bottom line is $750,000.' Armed with that information, you counteroffer for $500,000 and eventually settle the case for exactly $750,000. The few minutes it took you to 'mine for metadata' (combined with your opposition’s failure to 'scrub' the document) saved your client millions! Is what you did ethical? The American Bar Association (ABA) says yes. But the New York County Lawyer’s Association (NYCLA) Committee on Professional Ethics disagrees. In recent opinions on the ethics of 'mining for metadata,' the ABA and NYCLA come out on opposite sides over whether attorneys may ethically seek such a strategical advantage. Part II of this paper will define 'metadata,' explain its significance, and describe potential pitfalls for the unwary lawyer. Part III will discuss the conflicting ABA and NYCLA opinions, their underlying rationale, and ways that other states have addressed the ethics of 'mining.' Part IV offers practical tips to prevent attorneys from ending up on the wrong side of an inadvertent metadata disclosure. Part V provides a quick and dirty guide on just how to “mine for metadata.” Part VI is a brief conclusion.
