Ediscovery Ethics on Metadata Mining
‘Metadata’ in simple terms is data about data, but it can often appear to be a layer of information hidden amongst electronic data. It includes information such as the original creator of the document, the time, the kind of software used, the various changes made, the identity of the individual who made the changes and any miscellaneous comments added to the document. Lawyers handling litigation cases are well aware of e discovery procedures and the importance of metadata too.
This metadata has the potential of revealing critical and sensitive information about the client, such as the nature of business and related information. If the attorney is careless and does not take precautions to redact this information before dispatching it to another party, it can cause great damage to his client. The legal and business fraternities have strong disagreements about metadata being used for legal disclosure purposes.
According to an article published by the American Bar Association, there are three basic areas that have relevance to metadata mining.
- The Role of the Sender – Courts have admitted that the attorneys who send the documents have to exercise caution in disclosing information that is considered confidential. Each state in America has different laws and thus each state’s law defines confidential information differently.
- Recipient’s Right to Examine – The laws of Colorado, Washington D.C. and West Virginia do not prohibit metadata mining unless the recipient claims to be aware of the data being sent unintentionally. The states of New York and Maine prohibit metadata mining, while Minnesota and Pennsylvania have not set any fixed standards, stating that the decision to allow or prohibit metadata mining will differ from case to case.
- Recipient’s duty to notify – Generally a recipient who receives confidential data is obligated to notify the sender. Most of the time the courts refer to their local ABA Model Rule of Professional Conduct 4.4(b). Maryland is the only state where attorneys need not notify the sender, but can and should consult with their client regarding the decision to notify the sender.
Ascertaining Rights for Metadata Mining
A very precarious situation is created because of the different laws for metadata mining. In such a controversial scenario, the attorneys who handle the electronic files should be thoroughly well-read about sending off metadata accidentally. To avoid being prosecuted, they need to carefully select the right strategies or the right software that can help them pursue the right e-disclosure procedures, and avoid being subject to any unfortunate accidents.
Organizations look to lawyers for relief from litigation. A negligent attitude on behalf of the legal team can add to the woes of an organization that is in legal trouble. E-disclosure is meant for easing the burden of endless searching. With its acutely precision-based process, it sometimes uncovers information that could affect a client negatively. Thus the defending lawyers have to be very careful of the information that they send out and receive. Due to the varying laws of the states, lawyers have to be fully aware of the legal situations and violation repercussions. Thus they need to use the best litigation software that can correctly guide their legal practice.
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