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Formal Opinion 06-442 August 5, 2006
Review and Use of Metadata
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.
In modern legal practice, lawyers regularly receive e-mail, sometimes with
attachments such as proposed contracts, from opposing counsel and other parties.
Lawyers also routinely receive electronic documents that have been made
available by opponents, such as archived e-mail and other documents relevant to
potential transactions or to past events. Receipt may occur in the course of negotiation,
due diligence review, litigation, investigations, and other circumstances.
E-mail and other electronic documents often contain “embedded” information.
Such embedded information is commonly referred to as “metadata.”1
This opinion2 addresses whether the ABA Model Rules of Professional
Conduct permit a lawyer to review and use embedded information contained
in e-mail and other electronic documents, whether received from opposing
counsel, an adverse party3 or an agent of an adverse party. The Committee
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY,
321 N. Clark Street, Chicago, Illinois 60610-4714 Telephone (312)988-5300 CHAIR: William B.
Dunn, Detroit, MI o Elizabeth Alston, Mandeville, LA oT. Maxfield Bahner, Chattanooga, TN o Amie
L. Clifford, Columbia, SC o Timothy J. Dacey, III, Boston, MA o James A. Kawachika, Honolulu, HI
o Steven C. Krane, New York, NY o John P. Ratnaswamy, Chicago, IL o Irma Russell, Memphis, TN
o Thomas Spahn, McLean, VA o CENTER FOR PROFESSIONAL RESPONSIBILITY: George A.
Kuhlman, Ethics Counsel; Eileen B. Libby, Associate Ethics Counsel
©2006 by the American Bar Association. All rights reserved.
1. Creation of metadata is not a new phenomenon. For example, for decades, documents
saved on personal computers typically have contained embedded information
recording the last date and time that the documents were saved.
2. This opinion is based on the Model Rules of Professional Conduct as amended
by the ABA House of Delegates through August 2003. The laws, court rules, regulations,
rules of professional conduct and opinions promulgated in the individual jurisdictions
are controlling.
3. This opinion assumes that the receiving lawyer did not obtain the electronic documents
in a manner that was criminal, fraudulent, deceitful, or otherwise improper, for
example, by making a false statement of material fact to opposing counsel or to any
other third person (Model Rule 4.1(a)), using a method of obtaining evidence that violated
the legal rights of a third person (Model Rule 4.4(a)), or otherwise engaging in
misconduct (Model Rule 8.4). Such scenarios are beyond the scope of this opinion.
concludes that the Rules generally permit a lawyer to do so.4
Metadata is ubiquitous in electronic documents. For example:
• Electronic documents routinely contain as embedded information the
last date and time that a document was saved, and data on when it last
was accessed. Anyone who has an electronic copy of such a document
usually can “right click” on it with a computer mouse (or equivalent) to
see that information.
• Many computer programs automatically embed in an electronic document
the name of the owner of the computer that created the document,
the date and time of its creation, and the name of the person who last
saved the document.5 Again, that information might simply be a “right
click” away.
• Some word processing programs allow users, when they review and edit
a document, to “redline” the changes they make in the document to
identify what they added and deleted. The redlined changes might be
readily visible, or they might be hidden, but even in the latter case, they
often will be revealed simply by clicking on a software icon in the program.
• Some programs also allow users to embed comments in a document.
The comments may or may not be flagged in some manner, and they
may or may not “pop up” as a cursor is moved over their locations.
Other types of metadata may or may not be as well known and easily
understandable as the foregoing examples. Moreover, more thorough or
extraordinary investigative measures sometimes might permit the retrieval of
embedded information that the provider of electronic documents either did
not know existed, or thought was deleted.
4. Comment [16] to Model Rule 1.6 states, “[a] lawyer must act competently to safeguard
information relating to the representation of a client against inadvertent or unauthorized
disclosure by the lawyer or other persons who are participating in the representation
of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1,
and 5.3.” Addressing whether the sending or producing lawyer acted competently in
any given factual scenario is beyond the scope of this opinion. See also New York State
Bar Ass’n Committee on Prof’l Eth. Op. 782 (Dec. 8, 2004), (E-mailing documents
that may contain hidden data reflecting client confidences and secrets), available at
http://www.nysba.org/Content/NavigationMenu/Attorney_Resources/Ethics_Opinions/
Opinion_782.htm (last visited Sep. 15, 2006) (under New York’s Code of Professional
Responsibility, New York’s version of predecessor ABA Model Code of Professional
Responsibility, lawyers must exercise reasonable care to prevent inappropriate disclosure
of client confidences and secrets contained in metadata).
5. The names generally are automatically derived from the name of the owner of
the computer on which the document is created or from the name associated with the
user identification of the person who accessed the computer program. If a document is
copied and altered, it still might contain the name of the creator of the original document.
Thus, the embedded information about the creator of a document or who last
saved it might or might not identify the person(s) who actually created or saved it.
06-442 Formal Opinion 2
Not all metadata, it should be noted, is of any consequence; most is probably
of no import. In ordinary day-to-day circumstances, the embedded information
that is found in most documents, such as when they were saved, or who
the authors were, is unlikely to be of any interest, much less material to a matter.
In some instances, however, such as when a party to a lawsuit is attempting
to establish “who knew what when,” the date and time that a critical document
was created or who drafted it may be a critical piece of information. If a
payment amount is being negotiated, then a redlined change or a comment in a
draft agreement that suggests how much more the opposing party is willing to
pay or how much less they might take likely is of the highest importance.
The Committee first notes that the Rules do not contain any specific prohibition
against a lawyer’s reviewing and using embedded information in electronic
documents.6 The most closely applicable rule, Rule 4.4(b), relates to a
lawyer’s receipt of inadvertently sent information. Even if transmission of
“metadata” were to be regarded as inadvertent,7 Rule 4.4(b) is silent as to the
ethical propriety of a lawyer’s review or use of such information. The Rule
provides only that “[a] lawyer who receives a document relating to the representation
of the lawyer’s client and knows or reasonably should know that the
document was inadvertently sent shall promptly notify the sender.”8
Comment [3] to Model Rule 4.4 indicates that, unless other law requires otherwise,
a lawyer who receives an inadvertently sent document ordinarily may,
but is not required to, return it unread, as a matter of professional judgment.9
6. As stated earlier, this opinion assumes that the receiving lawyer acted lawfully
and ethically in obtaining the electronic documents.
7. The Committee does not characterize the transmittal of metadata either as inadvertent
or as advertent, but observes that the subject may be fact specific. As noted in
Formal Opinion 06-440 (May 13, 2006) (Unsolicited Receipt of Privileged or
Confidential Materials: Withdrawal of Formal Opinion 94-382 (July 5, 1994)), there is no
Model Rule that addresses the duty of a recipient of advertently transmitted information.
8. Comment [2] to Rule 4.4 confirms that the word “document” includes e-mail and
other electronic documents. The Comment also indicates that the notification requirement
exists “in order to permit [the sender] to take protective measures,” and includes
a recognition that applicable other law (outside of the applicable rules of professional
conduct) may require the lawyer to take additional steps beyond notification.
9. Rule 4.4(b) was added to the Model Rules in 2002. The clarity of its requirements
provided the basis for the Committee to withdraw two of its past formal ethics
opinions. First, the Committee, in Formal Opinion 05-437 (Oct. 1, 2005) (Inadvertent
Disclosure of Confidential Materials: Withdrawal of Formal Opinion 92-368 (Nov. 10,
1992)), withdrew its Formal Opinion 92-368 (Nov. 10, 1992) (Inadvertent Disclosure
of Confidential Materials). Formal Opinion 92-368 opined that a lawyer who receives
materials that on their face appear to be subject to the attorney-client privilege or otherwise
confidential under Model Rule 1.6, under circumstances where it is clear they
were not intended for the receiving lawyer, should refrain from examining the materials,
notify the sending lawyer, and abide by the instructions of the sending lawyer.
Second, the Committee, in Formal Opinion 06-440 (May 13, 2006) (Unsolicited
3 Committee on Ethics and Professional Responsibility 06-442
Some authorities have addressed questions related to a lawyer’s search for,
or use of, metadata under the rubric of a lawyer’s honesty, and have found
such conduct ethically impermissible.10 The Committee does not share such
a view, but instead reads the recent addition of Rule 4.4(b) identifying the
sole requirement of providing notice to the sender of the receipt of inadvertently
sent information, as evidence of the intention to set no other specific
restrictions on the receiving lawyer’s conduct found in other Rules.11
Whether the receiving lawyer knows or reasonably should know that opposing
counsel’s sending, producing, or otherwise making available an electronic
document that contains metadata was “inadvertent” within the meaning of
Rule 4.4(b), and is thereby obligated to provide notice of its receipt to the
sender, is a subject that is outside the scope of this opinion.12
The Committee observes that counsel sending or producing electronic doc-
Receipt of Privileged or Confidential Materials: Withdrawal of Formal Opinion 94-
382 (July 5, 1994)), withdrew its Formal Opinion 94-382 (July 5, 1994) (Unsolicited
Receipt of Privileged or Confidential Materials). Formal Opinion 94-382 addressed
the obligations under the Rules of a lawyer who is offered, or is provided, by a person
not authorized to offer them, materials of an adverse party that the lawyer knows to be,
or on their face appear to be, subject to the attorney-client privilege or otherwise confidential
under Rule 1.6.
10. The Committee notes that New York State Bar Ass’n Committee on Prof’l Eth.
Op. 749 (Dec. 14, 2001) (Use of computer software to surreptitiously examine and
trace e-mail and other electronic documents), available at
http://www.nysba.org/Content/NavigationMenu/Attorney_Resources/Ethics_Opinions/
Committee_on_Professional_Ethics_Opinion_749.htm (last visited Sept. 15, 2006) took
the position that under New York’s Code of Professional Responsibility, a lawyer may
not “intentional[ly] use ... computer technology to surreptitiously obtain privileged or otherwise
confidential information” of an opposing party. The New York committee reaffirmed
that view in the opinion cited in footnote 4, supra. The Committee recognizes that
Opinion 749 relies in part on language contained in present Rule 8.4(c) and (d) that prohibits
engaging in conduct “involving dishonesty, fraud, deceit, or misrepresentation” or
“that is prejudicial to the administration of justice.” However, the Committee does not
believe that a lawyer, by acting within the circumstances assumed by the instant opinion,
would violate either of those paragraphs of Rule 8.4. The Committee views similarly an
opinion issued for comment at the request of the Florida Bar Board of Governors by the
Florida Bar Professional Ethics Committee. See Proposed Adv. Op. 06-02 (June 23,
2006), available at http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/
53EDEDC5599019138525719A006DCE1B/$FILE/062%20pao.pdf?OpenElement#s
earch=%22Florida%20%2B%20opinion%20%2B%20metadata%22 (last visited Sept.
15, 2006).
11. We note that this interpretation was intended by the Commission on Evaluation
of the Rules of Professional Conduct (“Ethics 2000 Commission”), as reported in the
Reporter’s Explanation of Changes, available at http://www.abanet.org/cpr/e2k/e2krule44rem.
html (last visited Sept. 15, 2006), regarding this amendment.
12. One of the facts that might be relevant is whether the metadata is a privileged
communication.
06-442 Formal Opinion 4
uments may be able to limit the likelihood of transmitting metadata in electronic
documents. Computer users can avoid creating some kinds of metadata
in electronic documents in the first place. For example, they often can choose
not to use the redlining function of a word processing program or not to
embed comments in a document. Simply deleting comments might be effective
to eliminate them. Computer users also can eliminate or “scrub” some
kinds of embedded information in an electronic document before sending,
producing, or providing it to others.13 Methods to avoid or eliminate embedded
information have been, and no doubt will continue to be, discussed in
many legal programs, practice guides, and articles,14 as well as in general
office software publications and support web sites. The specifics of any such
software are beyond the scope of this opinion.
A lawyer who is concerned about the possibility of sending, producing, or
providing to opposing counsel a document that contains or might contain
metadata also may be able to send a different version of the document without
the embedded information. For example, she might send it in hard copy, create
an image of the document and send only the image (this can be done by
printing and scanning), or print it out and send it via facsimile.
Finally, if a lawyer is concerned about risks relating to metadata and wishes
to take some action to reduce or remove the potentially harmful consequences
of its dissemination, then before sending, producing, or otherwise
making available any electronic documents, she may seek to negotiate a confidentiality
agreement or, if in litigation, a protective order, that will allow her
or her client to “pull back,” or prevent the introduction of evidence based
upon, the document that contains that embedded information or the information
itself.15 Of course, if the embedded information is on a subject such as her
client’s willingness to settle at a particular price, then there might be no way
to “pull back” that information.
13. Of course, when responding to discovery, a lawyer must not alter a document
when it would be unlawful or unethical to do so, e.g., Rule 3.4(a) (“A lawyer shall
not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter,
destroy or conceal a document or other material having potential evidentiary value. A
lawyer shall not counsel or assist another person to do any such act[.]”)
14. For example, the 2006 ABA Techshow included a roundtable program on
metadata, and a number of publications and items available on ABA web site pages of
the ABA General Practice, Solo & Small Firm Division and the ABA Law Practice
Management Section have addressed metadata from practical and ethical perspectives.
15. On April 12, 2006, the Supreme Court of the United States approved extensive
amendments to the Federal Rules of Civil Procedure relating to discovery of electronic
documents, available at http://www.uscourts.gov/rules/newrules6.html#cv0804 (last
visited September 15, 2006). Among other provisions, certain of the amendments
allow a producing party to pull back privileged information and work product under
certain circumstances. The amendments will be effective on December 1, 2006,
unless Congress enacts legislation to reject, modify, or defer them.
5 Committee on Ethics and Professional Responsibility 06-442
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