Washington Weighs in on Metadata

The Washington State Bar Association recently issued its Informal Op. 2216 (2012), discussing ethical issues relating to metadata in electronic documents exchanged among counsel. As the 15th state ethics body to do so, Washington is a little late to the party. The New York State Bar issued its Opinion 749 in December 2001. I’ve been lecturing and writing about legal ethics and metadata even longer. See Luce, What’s the Matter with Metadata, 36 Colorado Lawyer 113 (Nov. 2007). (For those who prefer an outline format, here’s a link to the 2011 edition of my Metadata Crib Notes.)

One might think that after 14 state and one ABA opinion, and countless articles on the subject, Washington would have little to add. However, Opinion 2216 does make at least one thought-provoking contribution, opining that, while “ethical rules do not expressly prohibit [lawyers] from utilizing special forensic software to recover metadata that is not readily accessible or has otherwise been “scrubbed” from the document”

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