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Abstract

Bar associations have produced a number of legal ethics opinions that address the practice of metadata mining. This essay explains the nature of the problem, reviews the ethics opinions that have addressed it, and contends that the issue 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 metadata mining 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. These opinions examine whether a lawyer is permitted to extract an electronic document’s embedded information, such as the document’s author history, without first seeking the permission of either a court or the lawyer’s adversary.

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