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  • The Ethics of “Mining for Metadata”

    Imagine the following extreme scenario: you represent the defendant in a contract dispute and a junior associate at the plaintiff’s firm sends you a Microsoft Word document that purports to represent the plaintiff’s final, pay-it-or-we-go-to-trial settlement demand of $10-million. But you suspect the plaintiff would actually settle for far less. So, in a frenzy of zealous representation, you "mine for metadata"; that is, you deliberately search that document’s hidden or embedded information. A few mouse clicks reveal a wealth of information: when the document was created, who worked on it, for how long . . . a few more clicks and . . . what’s this?! You are still looking at the same document, but it now includes comments in the margins, made during the document’s editing process! One such comment from the head partner reads, "We’ll tell them $10 million for now, but that’s just to feel them out. Our actual bottom line is $750,000." Armed with that information, you counteroffer for $500,000 and eventually settle the case for exactly $750,000. The few minutes it took you to "mine for metadata" (combined with your opposing counsel’s inadvertent metadata disclosure) saved your client millions!

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