From the Introduction:
“This paper explores the particular ethical dilemma that is created when, outside of formal discovery, an attorney inadvertently, unknowingly, or unintentionally sends metadata hidden behind an electronic document to another attorney. This paper attempts to answer the question of whether the attorney who receives the electronic document, outside of formal discovery, should be ethically permitted to use computer software or some other means to search for the inadvertently disclosed metadata…Proponents of a rule permitting receiving attorneys to search for metadata argue that attorneys should be permitted to search to fulfill an ethical obligation to diligently represent their clients…The sending attorney, it is argued, should bear all responsibility for the inadvertent disclosure of metadata. This argument is strongest in the context of formal discovery and weakest outside of formal discovery and in transactional contexts.
On the other hand, proponents of a rule forbidding receiving attorneys from searching for metadata view the searching as an intentional intrusion on the attorney-client relationship of the sending attorney and the client…The receiving attorney, it is argued, searches with the sole purpose of trying to find protected information, and searching with this purpose is viewed as an intentional intrusion into the attorney-client relationship. This argument bears the most weight outside of formal discovery and in transactional practices, and weakens during formal discovery.”
The full text is available at http://pennstatelawreview.org…