Many lawyers feel that the preservation of electronic files in civil cases should be simple sweet and cheap. After all, they reason, we are interested in the content, not some fancy-pants metadata. What they miss though is the essential function of metadata – it is not only evidence in itself that might be relevant, but it is the file folder or envelope that preserves – and possibly proves – the authenticity of the underlying content. From an evidentiary perspective the authenticity of electronic evidence may be presumed, but this presumption is rather easily rebutted.
The technology of capture is not as important as the process. More on this later.
Darryl has never driven a car and has never been to Halifax in his life. He finds himself at the airport and needs to get downtown. He wonders whether he should a. Rent a minivan, b. Rent a sedan or c. Rent a convertible. (Darryl is a lawyer, and the client is paying for his travel expenses.)
Darryl decides to call a consultant. He asks the consultant which type of vehicle is best to rent. Since Darryl is alone and it’s raining, the inexperienced consultant recommends the sedan.
Darry convinces the clerk to let him rent the car by claiming he left his licence at home. But once in the driver’s seat Darryl realizes he is hopelessly incapable of starring the car, let alone driving it all the way downtown.
I happened to be at the airport and saw the whole thing unfold. I offered Darryl a lift in my rental car (which he accepted gratefully) and on the way downtown I politely said, “Next time take a limo!”
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