DC Bar Ethics Opinion on Review and Use of Metadata in Electronic Documents

My oversimplified reading of the opinion -- it's ok to use metadata and unless you know you shouldn't.
Excerpt below.  Full opinion at  http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion341.cfm



Opinion 341

Review and Use of Metadata in Electronic Documents

A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent. In such instances, the receiving lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work product of the sending lawyer or confidences or secrets of the sending lawyer’s client. 

Applicable Rules


Rule 1.6 (Confidentiality of Information)

Rule 3.4 (Fairness to Opposing Party and Counsel)

Rule 4.4 (Respect For Rights of Third Persons)

Rule 8.4 (Misconduct)


Inquiry
We have received numerous inquiries concerning a lawyer's obligations regarding metadata that is imbedded in electronic documents received from opposing counsel. Metadata is electronically stored information, typically not visible from the face of the document as printed out or as initially shown on the computer screen, but which is imbedded in the software and retrievable by various means. Often described as "data about data," metadata provides information regarding the creation and modification of a document, and sometimes includes comments by persons participating in the creation or modification of the document.[1] To the uninitiated, metadata is hidden and perhaps unknown, but to competent computer-users, the existence of metadata is well known and may be a simple "click" or two away. The information that is embedded is often mundane and of little or no interest, but in some instances it may reveal significant information

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