Mining for Embedded Data: Is It Ethical to Take Intentional Advantage of Other People's Failures?

Abstract

Embedded data is information, including metadata, that accompanies many common word processing files, but which is ordinarily not seen on the screen. Unless a lawyer removes embedded data from a file before sending the file to opposing counsel, the embedded data accompanying the file could reveal confidential or privileged information. The authorities disagree on whether the transmission of embedded data is either “inadvertent” or “dishonest” in terms of the disciplinary rules. This Article contends that transmission of embedded data should be at least presumptively inadvertent and that it is dishonest for a lawyer to actively look for embedded data.