"Metadata Fair Game in Texas?" --
- "In a recent opinion, the Texas bar panel adopted the minority view on metadata, which states that there is not an obligation to inform opposing counsel that he has sent a document containing metadata. Moreover, Texas rules do not prohibit searching for and in extracting metadata from documents. Of the nineteen jurisdictions that have issued opinions with specific requirements regarding attorneys’ obligation when transmitting or receiving documents containing metadata, Texas is the third state to opine that its rules do not require notification to the sender of the document."
- "Additionally, the Texas opinion indicates that the ethics rules “do not prohibit a lawyer from searching for, extracting, or using metadata” embedded in documents sent from opposing counsel. Currently, ten other state’s opinions forbid searching for or extracting metadata from the documents."
- "The Texas opinion acknowledge other state opinions and notes that . lawyers may be subject to metadata restrictions if they are subject to the rules of other jurisdictions."
- "Putting sensitive materials on an unprotected file-sharing site waived a plaintiff’s attorney-client privilege and work product protection for those materials, a federal magistrate judge in Virginia held Feb. 9 ( Harleysville Ins. Co. v. Holding Funeral Home, Inc. , 2017 BL 39590, W.D. Va., No. 1:15cv00057, 2/9/17 )."
- "However, the magistrate judge also ruled that defense counsel acted improperly by accessing the materials and using them without notifying the plaintiff’s counsel and asking for a court ruling. Disqualification isn’t warranted, but defense counsel must pay the parties’ costs in connection with the disqualification motion as a sanction, Magistrate Judge Pamela Meade Sargent decided."
- "The court’s waiver ruling should make lawyers think twice before putting confidential documents in a file-sharing site without password protection. The case is also a reminder that lawyers generally aren’t free to secretly exploit inadvertently disclosed materials even if they believe the disclosure waived any privilege claim."
- "The magistrate judge said the insurance company inadvertently disclosed the confidential material when an employee intentionally uploaded the case file to the Box site. The disclosure waived the attorney-client privilege under the multifactor waiver test set out in Virginia case law, the magistrate found. The employee should have known that the information uploaded to the site wasn’t protected in any way and that anyone who clicked on the hyperlink could access the case file, the magistrate said."