Any restrictions on referring to opposing side’s non-privileged metadata in motion practice? My gut says it’s just data like any other and fair game.

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Agree. Be wary. Metadata is tricky because it could just be improper collection. Metadata can be manipulated as well so it never is dispositive evidence of anything.

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Probably not but I’d be wary about doing it. For ex if you’re trying to say “they filed this document late bc the metadata shows it was created after the filing deadline” it’s possible the documentat was uploaded, printed to pdf and docustamped by the court to provide a new doc creation date.

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I read posts and comment sections like these and cannot believe how wildly different litigation and transactional practice is. Fascinating.

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How so?

Context?

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It’s not waived at this point (depending on jurisdiction) - they can absolutely claim inadvertent disclosure and still apply the privilege, likely successfully. I’m not sure of a case applying this to metadata, but in California such an inadvertent disclosure would be a “State Fund” issue.

Anyway that is all speculation. If OP has no reason to believe the metadata is privileged it is fair game until told otherwise. All the more reason to point it out to the other side and then use it against them assuming there is not some technologically sound reason OP is misinterpreting it.

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