Craig Ball invokes a quote from Charles Dickens in his latest post: “take everything on evidence”. The key is doing so on the right evidence.

In Craig’s post (“There’s No Better Rule”, available here on his excellent Ball in Your Court blog) Craig quotes from Charles Dickens’ classic novel Great Expectations, from which he quotes this line: “Take nothing on its looks; take everything on evidence. There’s no better rule.” He says he quotes that line at the end of his emails and that it’s his “guiding light”.

How does he apply it in his post? To the “modern attachments” debate which was discussed in the EDRM/Nextpoint webinar conducted by Brett Burney, Kelly Twigger and me on Tuesday (side note: the most attended webinar ever for EDRM, which illustrates what a hot issue this is!). Craig explains that his purpose is to “tackle some misinformation advanced as a basis to exclude modern attachments from the reach of discovery.”

Continuing, he says: “Many who paint dealing with Modern Attachments as infeasible or fraught with risk posit that Modern Attachments tend to be collaborative documents or documents that have gone through edits after transmittal.  They argue that they shouldn’t have to produce Modern Attachments due to uncertainty over whether the document collected during discovery differs significantly from how it existed at the time of transmittal. I don’t think that a good argument against collection and review, but once more, not my point here.”

“My point is that we need to stop asserting that these Modern Attachments are routinely altered after transmittal without evidence of the incidence of alteration. We should never guess at what we can readily measure.”

Couldn’t agree more, even though Craig’s next statement – “Based on my experience, most modern attachments (e.g., 85-95%) are not altered after transmittal” – does provide his own guess. But he follows that up with this: “Nevertheless, my personal observations mean little in the face of solid data revealing the percentage of Modern Attachments altered after transmittal.  We can measure this.  The last modified dates of Modern Attachments can be compared to their transmittal dates, either en masse or through appropriate sampling.” Take everything on evidence.

I agree, and as I said in the webinar (or meant to say – it was in my notes, at least) I would like to see that done too. How it’s done, though, requires one consideration.

As I mentioned in the webinar, in preparing for it, Brett started a presentation in Google Docs and shared it with Kelly and me via a link in an email. Guess what? That’s a hyperlinked file, and a prime example of what we’re talking about. Over the next few days, we all proceeded to collaborate on the content for the slide deck, which is how businesses are working more and more today.

As a part of that collaboration, we sent emails back and forth to each other to coordinate on status of updates and other things related to webinar prep – within the same email thread. I would guess probably eight to ten emails were sent back and forth between us.

Guess what? That file is linked in every one of those emails in the thread. Let’s assume out of eight emails, seven of them were being sent while the file was in progress. If someone compares the last modified date of the hyperlinked presentation to all eight emails, the file will have been edited after seven of the emails. That means only 12.5% of the file(s) were not altered after transmittal. Horrendous, right?

However, that figure is highly deceptive. In eDiscovery, email threads matter. We focus on the unique emails within the threads and review – and often produce – only those unique emails. eDiscovery platforms today are designed to automate that process. With that being today’s standard, only the last email in the thread should be measured, not all eight.

So, as Craig (and Charles Dickens before him) stated: “Take everything on evidence” – as long as it’s the right evidence. If anyone is going to take on the project and actually measure how many files are edited after being linked to in an email (which I would love to see!), they must consider only the last email in the thread – or, worst case, only unique emails in the thread (to account for side conversations along the way) – since those are the ones we typically focus on in eDiscovery. Not all emails in a thread in which a linked file appears. That will be deceptive as those earlier emails are often part of the collaborative process.

I will gladly cover such a study or analysis here if anyone is willing to do it – as long as it meets the criteria noted above.

So, what do you think? Would you like to see someone conduct a test on what percentage of hyperlinked files are edited after linked in unique emails? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using Microsoft Bing’s Image Creator Powered by DALL-E, using the term “email AND hyperlinks”.

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