2006-01-16

Florida Bar Takes Preliminary Position on Metadata Mining

As reported in the Florida Bar News:

"The Bar Board of Governors is asking whether an ethics opinion or Bar rule is needed to reguylate mining of metadata from electronic documents. The Florida Bar has taken the preliminary position that the mining of metadata from a digital data file constitutes unethical behavior, but in the meantime, governors didn't want to leave any doubt how they felt about it.

The Board, at its December 16 meeting in Amelia Island, voted unanimously for a motion to express its sentiment that metadata mining is something lawyers should not do.

'I have no doubt that anyone who receives a document and mines it...is unethical, unprofessional, and un-everything else', said member Jake Schickel, who made the motion that the board express its disapproval at the practice"

Florida's effort to address metadata is laudable. In fact, I think it is a jurisdictional first, and shows the forward thinking attitude of the Florida Bench and Bar.

However, the issues surrounding metadata are complex. They begin with definitional and semantic challenges (which change depending upon with whom you talk) and continue into obligations of data generators, data recipients, as well as discovery issues. Metadata can and does contain source information, authentication informatio (timestamps and digital signatures) as well otherwise potentially discoverable information. Standards authored by ANSI address the use of digital signatures and timestamps for electronic data used in the financial world. Certainly, if these digital signatures were embedded in metadata, the legitimate discovery of a litigant, or a regulatory authority, could be thwarted, and serve ends not intended by a Bar position against metadata examination. Indeed, it could be argued that information supporting an assertion of fact may only source from metadata. Another interesting question is whether, in a Federal Court matter, it might be argued the Federal Rules of Civil Procedure present a direct conflict with any proposed prohibition on the search for and use of metadata.

Imo, a sticky wicket, but one that begs at least a "college try" to set guidelines for the practitioner as well as for the Bar.

Link to the article: http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/cb53c80c8fabd49d85256b5900678f6c/c3f75b4e10e94f78852570e50051b23e?OpenDocument&Highlight=0,metadata*