At the meeting of the Minnesota Lawyers Professional Responsibility Board at the end of last month Opinion No 22 was adopted.
This Opinion, originally drafted in January this year, addresses lawyers' ethical obligations regarding document metadata.
Minnesota joins many other Professional responsibility committees at several bar associations in other states in the US in adopting such an opinion. A summary table of most of the Ethics Opinions in place can be found at the ABA Technology Legal Resource Centre. Taking the ABA's table headings, the summary of the Minnesota Ethics opinion is:
What is the Sender's Duty When Transmitting Metadata?
"...a lawyer is ethically required to act competently to avoid improper disclosure of confidential and privileged information in metadata in electronic documents."
May the Recipient Review or "Mine" Metadata?
"Opinion 22 is not meant to suggest there is an ethical obligation on a receiving lawyer to look or not to look for metadata in an electronic document. Whether and when a lawyer may be advised to look or not to look for such metadata is a fact specific question beyond the scope of this Opinion."
Must the Recipient Notify Sender is Metadata is Found?
Yes - "If a lawyer receives a document which the lawyer knows or reasonably should know inadvertently contains confidential or privileged metadata, the lawyer shall promptly notify the document’s sender as required by Rule 4.4(b), MRPC."
The full Minnesota opinion can be found at www.mncourts.gov/lprb/Opinion22.pdf