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!”

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.

Had a call this morning from a lawyer at a reputable mid-market firm who is keen to get his e-discovery committee off the ground with some policies and procedures. He knows that by January he and his Toronto colleagues will have to prepare discovery plans and deal with the realities of e-discovery. However, he is meeting real resistance from certain partners.  “Our only responsibility”, they say, “is to tell our clients they have to comply with the Rules. We don’t have to tell them how!” I think there’s a confusion here between (a) meddling in your client’s internal IT processes (which you are not qualified to do) and (b) providing guidance to your clients on legal and procedural matters which may end up being determinative of their case! Even if it isn’t a matter of professional competence (which I think it is) wouldn’t it be a matter of good customer service?

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.”