Don’t take unnecessary steps when it comes to handling email.

Let’s face it – emails and electronic documents are fast becoming a crucial part in today’s litigation matters. Emails are being produced in paper form every day in cases across the country. Be aware! Print outs of electronic mail can be easily changed. With paper printouts alone, you can almost never determine whether email has been altered or forged. Nor can you tell from printouts how widely an email was circulated and to whom and which route the email took to get to its destination. There is no way to authenticate a stand alone email printout. Without the electronic original, you wouldn’t even come close to positively authenticating an email. Even with the electronic original, it is still possible to be badly misled.

Printouts are not exact duplicates

The first absolute truth of email discovery is that a printout of an email is not an exact duplicate of the original electronic file. See Armstrong, et al. v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993). “the mere existence of the paper print-outs does not affect the record status of the electronic materials unless the paper versions include all significant material contained in the electronic records. Otherwise, the two documents cannot accurately be termed “copies”--identical twins--but are, at most, “kissing cousins.”

The danger of viruses

Many law firms still print their clients’ documents in preparation for review and production. This can be a choice that is fraught with peril. Electronic documents and emails produced by clients and opponents alike are oftentimes riddled with viruses. All too many firms don’t have adequate virus protection. They may be operating under the false assumption that just because they have a virus protection program that they’re safe. Unless the virus definitions within the program are updated daily the firm is at risk. Every double click places the firm’s entire stock of valuable work product and other data at risk. It is possible for viruses to replicate and spread undetected very rapidly. It is advisable to use workstations that are not attached to the network for this type of risky work.

Potential for mingling work product

Another incredibly risky behavior that we see law firms large and small engaging in is printing to networked printers. So what? You may ask. From a liability perspective this is about as risky a behavior as is possible. This danger is not from viruses. Imagine a scenario where a couple of employees are printing a client’s documents for Matter #1. Across the floor and around the corner another person is printing documents to the same printer for a different client we’ll call this Matter #2. In a heartbeat Matter #2’s work product becomes mixed in together and runs the risk of being included in the document production for Matter #1 with potentially devastating results.

How do you limit your exposure?

There is hope for Litigation Teams finding themselves in the midst of ever changing technology. You see, emails are already electronic documents. They can be converted to TIFF images with Bates Numbers burned into them. The full text and metadata can be extracted and added to fielded databases giving you full search capability. By converting these electronic files directly to tiff images you eliminate the need to print, bates label, copy, scan, OCR, objectively code and keyword code the documents. Gone are the days of key-word coding and disappointing OCR results.

The following email fields may be automatically extracted into a fielded database along with the full text of the emails and the attachments.

From, To, Cc, Bcc, Date, Message ID, Received, Keywords, Subject, References to other emails and many more fields.

[For a full explanation of these fields please refer to the article on Meta Data…the data behind the data.]

Use these documents with your favorite litigation support software

Once the electronic documents have been converted to TIFF images and you have the fielded data, it is possible to use these elements in your favorite litigation support database. They become part of your case. You can simultaneously search across transcripts, the database and the full text of the documents. What is more, there’s no need for busy litigation professionals to learn additional programs. What a treat…and at a fraction of the cost of handling paper!