Anthony Davis writes in the NYLJ:
"In 2001, the New York State Bar Association Committee on Professional Ethics, in Formal Opinion 749 (NYSBA 749) echoed Secretary Stimson’s view in saying that "lawyers may not ethically use available technology to surreptitiously examine and trace e-mail and other electronic documents."
In this article we will consider NYSBA 749 in the light of two more recent opinions, from the ABA and from Maryland, and will show how they arrive at the diametrically opposite conclusion, and why their reasoning is preferable.
What is metadata? ABA Formal Opinion 06-442 (ABA 6-442) simply defines it as information which is "embedded" in electronic documents. More helpfully, the Maryland State Bar Association Committee on Ethics, in Formal Opinion 2007-09 (10/19/06) (Maryland 2007-09), defines metadata as: "information within programs (e.g., Microsoft Word/Excel/Power Point, Corel Word Perfect/Quattro Pro, Adobe Acrobat, etc.) which is not readily visible but which is accessible and which may include data such as author, dates of creation/printing, number of revisions, content of those revisions/previous versions, editing time, etc."
"Hopefully, the New York State Bar Association Ethics Committee will reconsider NYSBA 749 – in the light of NYSBA 782 as well as the ABA and Maryland opinions – and recognize that if gentlemen are careless enough to send a document containing metadata, then they have only themselves to blame if the recipients read it. In the interim, readers are reminded that ethics opinions from bar associations are just that – opinions – and do not represent binding expressions of law. "