Martin Felsky

Frequently lawyers ask me to find “all e-mails” for certain custodians, in certain date ranges on certain topics. The assumption is that we look at the contents of the corporate e-mail server (usually Exchange or Notes) and the local client.

E-mails can exist in many forms however, many of which are often overlooked in superficial investigations. Some of the more obvious “alternate” sources of e-mail are personal e-mail web services (Yahoo, Google or Hotmail to name three of the most popular); social networking sites (FaceBook, LinkedIn etc.) and smartphone and Blackberry messaging of various sorts. But other types of important e-mail messages found closer to home are less obvious:

- messages saved by the user as loose files outside the e-mail system in .txt, .html, .msg or other format

- e-mail messages embedded as text within the body of another e-mail (as opposed to an attachment), in which case Author, Recipient, Date and Subject fields are not effectively searchable

- messages sent and received by the custodian’s administrative assistant or other delegate

- messages crafted and managed in CRM or other programs not normally considered as messaging applications

Lawyers should be careful when reporting to clients that they are confident having searched “all potentially relevant e-mails.”

In the context of document discovery, many outside counsel advise their clients to search for relevant e-mails, and then print them out or burn them to a CD for review. That practice is no longer sustainable as a matter of law or practice.* By ignoring the obligation to preserve not only the content of e-mail messages but the metadata associated with them, you may be putting your clients at risk of spoliation sanctions.**