Ethics

I've been blogging about the issue for years (I'll save you a parade of links), but I finally had the chance to pull my thoughts together in an article for an upcoming symposium at Akron Law School. 

I'd welcome feedback on a draft of the article, which you can find here.  In essence, I endorse the ABA's approach to the issue, which has been followed by a minority of jurisdictions.  Here is the abstract:

This essay, which is part of a symposium edition of the Akron Law Review, explores the practice of metadata mining (i.e., the surreptitious examination of an electronic document?s hidden data).  The essay reviews the legal ethics opinions that have addressed the practice and contends that metadata mining is simply a variation of the oft-examined problem of inadvertently disclosed documents.  The essay concludes that flat bans on metadata mining are misguided and that the issue should be treated in the same manner as inadvertent disclosures more generally.  Under this approach, if a state permits lawyers to review inadvertently disclosed privileged documents, the jurisdiction should also permit lawyers to review the metadata contained in electronic documents.   In contrast, if a jurisdiction prohibits the review of misdirected privileged documents, the state should ban metadata mining, but only when recipients have reason to believe that the metadata contains protected information.