What is the lawyer’s responsibility for metadata?

Corey Stephenson of Lawyers Weekly USA wrote an article about the Oregon Bar’s position about metadata:

"If a lawyer receives a document and knows or reasonably should know that metadata was inadvertently included, the Oregon Rules of Professional Responsibility only require notice to the sender. The receiving lawyer is not required to return the document unread or to comply with a request by the sender to return the document, according to the opinion.

The Bar went on to say that the 2nd lawyer’s client should be consulted about whether the lawyer should read the document. "…. (G)iven that the decision affects a client’s objectives, lawyers should consult with the client about the risks and rewards of returning the document versus retaining and reading the document prior to making such a decision."

It was my understanding that a misguided "hard copy" needed to be returned, unopened, if the lawyer knew the document was mistakenly sent. It seems we are modifying the rules a bit with technology.

But, there was a more fascinating pronouncement. The opinion went on to say that lawyers may not utilize special software to reveal the metadata in a document. “Searching for metadata using special software when it is apparent that the sender has made reasonable efforts to remove the metadata may … constitute ‘conduct involving dishonesty, fraud, deceit or misrepresentation.’" The comparison was made to surreptitiously entering the other lawyer’s office to obtain client information.

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