Saturday, January 07, 2006

Gentlemen Don't Read Each Other's Mail Department

PDF for Lawyers has an interesting posting about the Florida Bar Association's attempt to make the review of inadvertently communicated metadata in a document an ethics violation.

The posting had this precious quote from the initial article in the Florida Bar News:
"I have no doubt that anyone who receives a document and mines it . . . is unethical, unprofessional, and un-everything else," said board member Jake Schickel, who made the motion that the board express its disapproval at the practice.
Dave Fishel, who authored the posting, offered some expanded commentary in response to a reader's comments:
There are at least two different kinds of documents at issue here -- discovery documents and work product. I can't see ethical violations surrounding examination of metadata in discovery documents (and the courts are now regularly dealing with discovery metadata issues).

. . . . I don't think that a document filed with a court or specifically sent to opposing counsel for review should be afforded the same kind of protections that his briefcase and private papers get. That is, there is no "reasonable expectation of privacy" in filed or exchanged documents.

The Florida Board, however, makes no distinction between these doc types. The thing that is most disturbing to me is that this seems to be coming from the Board's profound ignorance of technology and lack of thought that went into their edict.
I think that Fishel has it right. I'm rapidly coming to the conclusion that bar association ethics committees, in general, have an almost institutional inability to deal with issues at the intersection of ethics and technology. (The decision making process here was not improved by the fact that, as Fishel indicates, the president-elect of the Board got burned by the Word track changes function.)

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