Could Vermont counsel search an opponent's electronic file for metadata, and what followed an inadvertent privileged disclosure?

Plain-English summary

The Vermont Bar Association asked about hidden metadata in files exchanged with opposing counsel, including track changes, privileged communications, and work product. The committee concluded that sending lawyers had to exercise reasonable care not to disclose protected information in metadata, drawing on Vermont Rules 1.1, 1.3, and 1.6. It left the exact precautions to the circumstances.

For received files, the committee found no Vermont rule that barred searching for embedded metadata with available tools. It distinguished the search from the separate question of using privileged material disclosed inadvertently. Under Vermont Rule 4.4(b), which the opinion said would become effective September 1, 2009, a recipient who knew or reasonably should know a document was inadvertently sent had to notify the sender. Whether privilege was waived or the information could be used depended on substantive law or a court ruling.

In discovery, the committee said responsive metadata generally had to be disclosed alongside other responsive information, subject to recognized privilege and work-product limits. It found no authority for removing nonprivileged metadata from produced documents as a general practice and no bar to a recipient searching produced files.

In practice

The opinion treated sending, searching, and inadvertent disclosure as separate questions. The sender's reasonable-care duty protected confidential metadata; the recipient could examine ordinary received files; and apparent inadvertent privileged disclosure triggered notice while use and waiver remained questions of law.

Common questions

Q: Did the committee prohibit searching an opposing lawyer's electronic file for hidden metadata?

A: No. It found no Vermont ethics rule that imposed that prohibition on an ordinary received file.

Q: Could the recipient automatically use privileged metadata disclosed by mistake?

A: The opinion did not decide that. It required notice under Rule 4.4(b) and left waiver and permissible use to substantive law.

Q: Could a producing party simply strip all metadata in discovery?

A: The committee found no general authority for removing responsive nonprivileged metadata, while recognizing privilege and work-product limits.

Background and rules framework

The opinion discussed Vermont Rules 1.1, 1.3, 1.6, 3.4, 4.4, and 8.4 as they stood in 2009. It identified the September 1, 2009 effective date for Vermont Rule 4.4(b) and noted that procedural and substantive law governed privilege consequences.

Citations and references

Vermont Rules of Professional Conduct:

• Rules 1.1, 1.3, 1.6, 3.4, 4.4(b), and 8.4.

Model Rules cited:

• Model Rule 4.4(b).

Other opinions cited:

• ABA Formal Opinions 06-442, 92-368, and 05-437; Colorado Opinion 119; D.C. Opinion 341.

Procedural authorities cited:

• Federal Rule of Evidence 502(b); Fed. R. Civ. P. 26(b)(5)(A) and (B).

See also

• Colorado Ethics Op. 119: Metadata
• ABA Formal Op. 06-442: Review of metadata
• Arizona Ethics Op. EO-20-0008: Sending electronic documents

Source

• Landing page: VBA electronic-document opinions
• Original PDF: Vermont Advisory Opinion 09-01