Metadata in Estate Planning Documents and Pleadings

The ABA has recent issued Formal Opinion 06-442 entitled Review and Use of Metadata.  This opinion opens the door to lawyers to comb through electronic versions of documents to seek out potentially usefully metadata such as “the last date and time that a document was saved and by whom, data on when it was accessed, the name of the owner of the computer that created the document and the date and time it was created, and a record of any changes made to the document or comments written into it.”  See Lawyers Receiving Electronic Documents are Free to Examine ‘Hidden’ Metadata: ABA Ethics Opinion, ABA News Release, Nov. 9, 2006.

The opinion places the burden on the sender to remove metadata or to print and then scan/fax the printout.  Here is the ABA’s summary of the opinion:

The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party. A lawyer who is concerned about the possibility of sending, producing, or providing to opposing counsel a document that contains or might contain metadata, or who wishes to take some action to reduce or remove the potentially harmful consequences of its dissemination, may be able to limit the likelihood of its transmission by “scrubbing” metadata from documents or by sending a different version of the document without the embedded information.