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The Legal Ethics of Metadata Mining

Andrew M. Perlman

Suffolk University Law School

September 13, 2009

Akron Law Review, Forthcoming
Suffolk University Law School Research Paper No. 09-40

This essay, which is part of a symposium edition of the Akron Law Review, explores the practice of metadata mining (i.e., the surreptitious examination of an electronic document’s hidden data). The essay reviews the legal ethics opinions that have addressed the practice and contends that metadata mining is simply a variation of the oft-examined problem of inadvertently disclosed documents. The essay concludes that flat bans on metadata mining are misguided and that the issue should be treated in the same manner as inadvertent disclosures more generally. Under this approach, if a state permits lawyers to review inadvertently disclosed privileged documents, the jurisdiction should also permit lawyers to review the metadata contained in electronic documents. In contrast, if a jurisdiction prohibits the review of misdirected privileged documents, the state should ban metadata mining, but only when recipients have reason to believe that the metadata contains protected information.

Number of Pages in PDF File: 16

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Date posted: September 15, 2009  

Suggested Citation

Perlman, Andrew M., The Legal Ethics of Metadata Mining (September 13, 2009). Akron Law Review, Forthcoming; Suffolk University Law School Research Paper No. 09-40. Available at SSRN: https://ssrn.com/abstract=1472712

Contact Information

Andrew Perlman (Contact Author)
Suffolk University Law School ( email )
120 Tremont Street
Boston, MA 02108-4977
United States
(617) 573-8777 (Phone)

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