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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.**

There are three issues to be considered when advising your client about e-mail capture:

1. Should clients be allowed to search through and identify their own relevant e-mails?
2. If so, is Outlook (or any native e-mail application) a suitable tool for culling e-mail?
3. Is printing or copying selected e-mail messages an appropriate way to provide them to outside counsel for review?

1. Clients searching their own e-mail
Even though in the paper-based world of discovery, clients traditionally do the document screening (though not the final relevance determination), given the volume and volatility of e-mail, that practice is disfavoured among sophisticated litigants, for the following reasons:

- First, employees rarely have a thorough understanding of where to look for relevant e-mail. Many organizations have server-based e-mail systems, with or without local synchronization, auto-archiving, Blackberries, ASP-based systems, Instant Messaging and a host of other technologies that may be quite transparent to the end user. Will users know how to digilently search through e-mail archives? Do they even know what an archive is or that they have one? Will they remember to search through Sent Items?

- Second, clients do not usually have the requisite skills to craft effective search strategies. Do they understand the capabilities and limitations of their e-mail search engines? How many end users have experience with the “Advanced Find” function of Outlook?

- Third, there is a moral hazard concern. That is, end users whose very actions have given rise to a lawsuit – for example managers who may have sent racist messages about a subordinate – will be very reluctant to dig deeply for all the incriminating evidence. That’s just human nature.

- Fourth, if individual users go through their own e-mail boxes and copy or forward individual messages, how do they keep track of what was searched, what was produced to outside counsel and what was filtered out? If outside counsel suggests broadening the search, how will the end user know how to exclude those e-mails that were already provided? There is no numbering or unique identification to help end users maintain the integrity of what was searched and what was sent. And what if the end user deletes a message that was not delivered to counsel, but is then subsequently requested?

2. Is Outlook the appropriate tool for culling?
If you do entrust your client’s employees with the task of searching through their own e-mails, should they do so in Outlook? Absolutely not. Outlook does not search attachments – only e-mail messages. The smoking gun - or the strongest supporting evidence - in your case could very well be an attachment. The Outlook search function is designed as a convenience for end users, not as a sophisticated search tool.

3. Printing, copying or forwarding individual e-mails
According to U.S. case law, the Guidelines for the Discovery of Electronic Documents in Ontario, The Sedona Principles and virtually every commentator on the subject, the preservation of data and metadata is the first responsibility of the client and outside counsel. By having clients extract individual messages and print, copy or forward them to counsel, critical metadata is being changed, and nothing has been done to preserve the original message.

What is the best practice?

1. Work with your client’s IT experts to determine all the possible sources of relevant e-mail for the identified users – do not leave this to the end users themselves.

2. For the safest and most reliable approach to preservation, create a mirror image of the drives containing the identified sources (for example, the Exchange server and the user’s desktop hard drive). Mirror images are usually created using Guidance EnCase or Norton Ghost software.

3. Depending on the case, and the legal and strategic issues involved, it may be acceptable to copy PST files in their entirety, using software that that can be configured to preserve metadata, for example Robocopy or XXCopy.

4. When receiving mirrored drives or PST files from your clients, never open the PST files to review e-mail. Always use an experienced e-discovery vendor to ensure that metadata is preserved and extracted properly, and that an auditable chain of custody has been established.

* Guidelines for the Discovery of Electronic Documents in Ontario, 2005, Principle 5: “As soon as litigation is contemplated or threatened, parties should immediately take reasonable and good faith steps to preserve relevant electronic documents. …” See http://www.commonwealthlegal.com/pdf/E-DiscoveryGuidelinesOct2005.pdf. 
** The Guidelines (supra) provide that, in the appropriate case, you must: “create litigation copies of potentially relevant active data sources, for example by means of electronic backup or forensic copying of the documents, so as to preserve potentially relevant meta-data.”