The Negotiator Magazine

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Is it ethical for the recipients of electronic files to mine such files for metadata that will provide them with drafting changes and drafter comments? In 2006, American Bar Association Formal Opinion 06-442 indicated that lawyers have no ethical duty to refrain from mining and using metadata embedded in electronic files received through e-mail or other modes from opposing parties. On the other hand, both the New York Bar Association [N.Y. State Ethics Op. 749 (2001)] and the Alabama Bar Association [Ala. State Bar Disc. Comm. Op. 2007-02 (2007)] have indicated that such mining of metadata in electronic files constitutes an improper attempt by the file recipients to obtain privileged information they have no right to see in an effort to obtain an unfair advantage over the other side. I was recently on a program involving corporate counsel when this exact question was raised by an attorney who had received an electronic file which he was able to mine for hidden information. Some of the attorneys in the audience thought this conduct was inappropriate, but others thought that if the sender was careless enough to send files containing such metadata, the recipient had the right to look for it. Persons sending electronic files during negotiations should be careful not to include more information than they really wish to convey. They should have computer experts delete any metadata they do not wish the recipients to see.

Charles B. Craver is the Freda H. Alverson Professor at the George Washington University Law School. He is the author of Effective Legal Negotiation and Settlement (5th ed. 2005 LEXIS) and The Intelligent Negotiator (2002 Prima/Crown). He is coauthor of Legal Negotiating (2007 Thomson/West) and Alternative Dispute Resolution: The Advocate’s Perspective (3d ed. 2006 LEXIS). Over the past thirty years, he has taught negotiating skills to 80,000 lawyers and business people throughout the United States, and in Canada, Mexico, Puerto Rico, Austria, England, Germany, and China. He can be reached at ccraver@law.gwu.edu.


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June 2007