Monday, November 24, 2008

What You Don't See Can Hurt Your Client

Revisions made with word processing software to legal documents can be revealing if inadvertently given to opposing counsel. The revisions/deletions are still visible as code in the document after they are deleted, even though you can't see them. This invisible data about data, or "metadata," is sometimes sent to an opposing side of a negotiation or lawsuit by accident. There is software that can be used to "scrub" this data out of a document, but it not yet used uniformly in the legal profession. (You can't scrub discovery responses if the metadata is responsive. That metadata must remain untouched). So what happens when opposing counsel gets this document with the other guy's confidential information? The key here is that the confidentiality is owned by the attorney's client, not the attorney. The failure to remove the metadata is a breach of a duty by the attorney to her client. However, the ABA concludes that if an attorney sends you a document, and you should reasonably believe that some information was sent by mistake, the only real duty to the recipient is notify the other attorney of the screw up. But you can do whatever you like with the information after giving such notice. (ABA Formal Opinion 06-442) Hmmm. That sounds like punishment to the client, even though the attorney made the mistake.

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