The issue of metadata and a lawyer's ethical duties came to the surface recently in connection with a bankruptcy adversary proceeding in New York. (New York's ethics opinions on access of metadata were discussed in the article attached to my prior post here.)
In Steinbuch v. Cutler, Adv. Pro. No. 07-50064 (Bankr. E.D.N.Y. June 5, 2009), the court addressed allegations made in a letter by the pro se plaintiff (who happens to be a law professor) that the defendant's counsel violated the New York Code of Professional Responsibility through "observation and commentary on the electronic file name of documents filed as a matter of public record" on plaintiff's behalf in another action pending in U.S. District Court in Washington. Id.at 3. Specifically, the plaintiff argued that defense counsel inappropriately mined metadata by referencing the filename of documents publicly filed by plaintiff's counsel through the ECF filing system in the DC lawsuit.
When defense counsel responded to plaintiff's allegation by requesting that plaintiff withdraw his letter complaint or face a demand to reimburse defendant for defendant's fees, plaintiff sent a second letter to the court, complaining that defense counsel was threatening him for reporting violations of the bar rules, itself a violation of the ethical canons.
After citing the two relevant New York ethics opinions on the access of metadata in materials from opposing counsel, the court quickly brushed aside the plaintiff's complaints.
[Plaintiff's] observation of the original file name was not made possible by use of computer software, nor did such file name come from "behind" the visible document. Neither was disclosure of the original file name an inadvertent act on behalf of plaintiff. The original file name of a document filed via a court's ecf system plainly shows on the court-generated Notice of Electronic Filing. This court finds disingenuous plaintiff's suggestion that by reading the notice of Electronic FIling, [defense counsel] invaded plaintiff's relationship with his then counsel, threatened confidentiality, made public a "secret" between plaintiff and his counsel or unethically used metadata.
Id. at 4.
The court also was displeased by what it perceived as plaintiff's attempt "to use a frivolous and factually inaccurate ethics complaint for the purpose of gaining an advantage in a pending civil matter." Id.
All in all, not a very convincing case by the plaintiff of the exploitation of metadata.
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