let alone what to do about it. Well I beg to differ. The attorneys
receiving the useful information didn’t speak up because they
understood there was nothing inadvertent about the actions of
the attorneys who were sending out the documents. innocent or naive, but not today. Today, I would label the
attorneys who continue to routinely send out documents with the
associated metadata intact incompetent. Yes, that may seem harsh,
but it is true nonetheless.
Again, the Rules of Professional Conduct are in play. As
attorneys we are to maintain client confidences. And in
today’s world, professional competency means having an
understanding about what computers and applications like word
processing programs do and don’t do. This isn’t optional. You
see, I understand why the attorneys receiving the documents
kept their mouths shut. I actually think they made the correct
decision, because the ongoing disclosures were not inadvertent.
A number of years ago, I might have called the disclosures If you aren’t already responsibly addressing the issues surrounding
metadata on a daily basis, all I can say is now is the time and
here’s why. There are firms that are using software tools that
literally mine for metadata and sometimes they hit real pay dirt.
Should opposing counsel ever do that to you, do you really want
to try to argue that your routine delivery of the metadata was an
unintentional act? I suspect any impacted client would be less
than impressed with that approach. In fact, I think they would
call it what it is, just as I did, incompetent.
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