In the smack down of the decade, the New York County Lawyer's Association Ethics Committee butts head with the American Bar Association Ethics Committee on the issue of mining for metadata inadvertently disclosed by opposing counsel. It's hunky dory per the ABA, but apparently the NYCLA respectfully disagrees with that conclusion.
This Committee finds that the NYSBA rule is a better interpretation of the Code’s disciplinary rules and ethical considerations and New York precedents than the ABA's opinion on this issue. Thus, this Committee concludes that when a lawyer sends opposing counsel correspondence or other material with metadata, the receiving attorney may not ethically search the metadata in those electronic documents with the intent to find privileged material or if finding privileged material is likely to occur from the search.
Oh snap! Wish I could have been a fly on that wall!
Hat tip: Legal Blog Watch.