2026-08-02

Is it ethical for opposing counsel to mine your document's metadata? What the bar opinions actually say

A litigator redlines a draft agreement in Word, accepts the changes that made it into the final version, saves it as a clean-looking .docx, and emails it to opposing counsel. Nothing in the visible text hints at the negotiation history. But the file itself may still carry the author's name, the legal assistant who actually typed the first draft, a revision count, and — if a step got skipped — the tracked changes and comments that were never resolved, just hidden from the default view. Is it fair game for the lawyer on the other end to go looking through that? The honest answer is: it depends entirely on which state's ethics rules apply, and the two dominant answers directly contradict each other.

The ABA's answer: essentially fair game

In Formal Opinion 06-442 (Aug. 5, 2006), the ABA's Standing Committee on Ethics and Professional Responsibility concluded that the Model Rules of Professional Conduct contain no specific prohibition against a lawyer reviewing and using metadata embedded in an electronic document received from another lawyer. The ABA Journal's own coverage of the opinion summarized its practical effect in three words: metadata is "essentially fair game." The opinion places the burden on the sending lawyer instead — if a document shouldn't be examined for what it carries beneath the visible text, the opinion's logic is that the sender should have scrubbed it before hitting send, not that the recipient owes it any special handling once it arrives.

Several states flatly disagree

That's the ABA's position, not a national one. The New York State Bar Association's Committee on Professional Ethics reached the opposite conclusion five years earlier, in Opinion 749 (Dec. 14, 2001): it bars attorneys from using technology to "surreptitiously obtain privileged or otherwise confidential information" from an opposing party's electronic files. New York's county-level bar doubled down later — NYCLA's Committee on Professional Ethics, in Opinion 738 (March 24, 2008), held that a lawyer who receives a document that appears to contain inadvertently produced metadata is ethically obligated to avoid searching it, carving out an exception only for a prior agreement between counsel to share tracked changes, or for investigating a genuinely non-privileged question. The Florida Bar's Opinion 06-2 (Sept. 15, 2006) went further rhetorically, comparing the act of examining an inadvertently sent document's metadata to "rifling through someone's briefcase," and prohibited it outright. The State Bar of Arizona's Ethics Opinion 07-03 (2007) took the same restrictive line: a receiving lawyer may not examine a communication for the purpose of discovering its embedded metadata in the first place. Alabama's State Bar reached a similarly restrictive conclusion in its own 2007 opinion. Four state bars, one federal-level opinion, and a flat contradiction between them.

The middle ground: it depends what you knew, and when

Not every jurisdiction picked a hard side. The District of Columbia Bar's Ethics Opinion 341 (Sept. 2007) allows a receiving lawyer to review metadata unless that lawyer has actual prior knowledge it was sent inadvertently — mere suspicion isn't enough to trigger a duty to stop and consult the sender first, but genuine advance knowledge is. Maryland's State Bar Committee on Ethics, in Opinion 2007-09, sided with the ABA rather than New York or Florida, concluding that review isn't an ethics violation. The practical result is a patchwork: the same emailed .docx could be entirely fair game to open in one state and an ethics violation to even glance at in another, and a lawyer usually can't be certain in advance which rule the recipient's home bar happens to follow.

Two different things get mined, and clearing one doesn't clear the other

The disagreement above is about whether looking is allowed — but what there actually is to find splits into two unrelated categories inside the same .docx, xlsx, or pptx file. One is document properties: the author name, the lastModifiedBy field naming whoever last saved the file, a plain revision count, and — via docProps/app.xml and custom.xml — the company name and any custom fields a legal document-management system wrote in, which in law-firm practice commonly means client names or matter/reference numbers. None of that is visible in the document body, and none of it is affected by anything you do to the visible text. The other category is tracked changes and comments, which live in entirely different parts of the same zip archive — word/document.xml carries the insertion and deletion marks, comments.xml carries the comment text — because they're document content, not document properties. A file with "Track Changes" turned off in the view can still have every deletion sitting there in the underlying XML, recoverable by anyone who knows to look in the Review pane, entirely independent of whatever the document's properties say.

Where a client-side scrubber fits, and where it stops

NearScrub's Office handling blanks exactly the document-properties layer — docProps/core.xml, app.xml, and custom.xml — entirely inside the browser, with nothing uploaded, which matters for privileged material specifically because the file never leaves the device to get scrubbed. That removes the author name, last-modified-by, company, manager, and any custom client/matter fields in one pass across docx, xlsx, pptx, and their OpenDocument equivalents, and it does the same for a PDF's Info dictionary (Author, Creator, Producer, and the other identifying keys) plus its XMP metadata stream. What it doesn't do is touch word/document.xml or comments.xml — it won't accept tracked changes or delete comments for you. If a document has either, those have to be resolved in the word processor's own Review tools first, the same prerequisite step that applies to any Office file regardless of which state's ethics opinion happens to govern the person receiving it. None of this is a substitute for a firm's own conflicts and privilege review, and ethics opinions get amended or superseded, so what's cited above is a snapshot, not current legal advice for any specific jurisdiction. But the ABA/New York split makes one thing clear regardless of which side turns out to apply: the only step that doesn't depend on guessing the recipient's home bar is not leaving the trail in the file in the first place.