Lawyers routinely transmit e-mails with attachments, such as proposed contracts and transactional documents, that contain metadata. Thelen Reid partners Richard Raysman and Peter Brown survey regional and professional ethics rules for sending and receiving "data about data" in "Taking the High Road With Metadata." There, they bring to light New York's Disciplinary Rule 4-101.
On the one hand, using computer technology to obtain metadata can lead to disclosure of an adversary's confidences or secrets. Hence, under DR 4-101 attorneys must "use reasonable care when transmitting documents by e-mail to prevent the disclosure of metadata containing client confidences or secrets." New York State Bar Assoc. Ethics Op. 782 (2001). Okay then. What about the other hand?
The other hand holds the receiving attorneys responsibility under DR 4-101. NYSBA Ethics Opinion 749 (2001) concluded that "a lawyer may not make use of computer software applications to surreptitiously 'get behind' visible documents or to trace e-mail." This is sorta-kinda like telling the open source community that reverse engineering is unethical.
One can imagine the case of the dueling banjos: One attorney does not take reasonable care in transmitting documents via e-mail and opposing counsel mines them for metadata. No doubt, this will be offsetting penalties and the plaintiff will kick off again from the 40-yard line.
When N.Y. takes the blinders off, we'll most likely have a bright-line rule.
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