On June 10th, the West Virginia Lawyer Disciplinary Board issued an opinion on metadata entitled, What is Metadata and Why Should Lawyers Be Cautious? A bit of an odd title, I thought, but it basically plows the usual ground.
It notes that there is no specific prohibition against reviewing and using metadata in the Rules of Professional Conduct. However, some of the ethical rules may come into play. Notably, the duty of competent representation may require a lawyer to remove metadata in order to maintain confidentiality.
On the other hand, if a lawyer knows (this is the part that troubles me, since I don't understand how "knowledge" could be proven) that privileged information was inadvertently sent, it might be an ethical violation for the receiving lawyer to review and use it under Rule 8.4(c). In this respect, the opinion concludes that "it is always safer to notify the sender before searching electronic documents for metadata." Oh sure, that will happen when pigs fly.
The opinion also notes that Rule 3.4 prohibits altering, destroying or concealing material having potential evidentiary value. Therefore, metadata may not be destroyed in e-discovery and must be produced when requested if not objected to.
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