Legal commentator Craig Ball has an important message for the "trial lawyers in the trenches" who spend time working on electronic discovery:
We need to devote more time to thinking about what the evidence is instead of where it lodges. Too often, we fixate on the containers — the e-mail, spreadsheets and databases — with insufficient regard for the content. This isn't just a rant against producing parties. I see the failure as well in requesting parties determined to get to the other side's tapes and hard drives but unable to articulate what they're seeking.
Saying, "I want the e-mail" is as meaningless as saying, "I want the paper." E-mail, voicemail, ledgers or lipstick on the mirror are just media used to hold and convey information. It's the transaction and the content that make them evidence.
The form matters, but only for reasons of accessibility (Can I view or hear it?), preservation (How do I protect it?), utility (Can I search and sort it?), completeness (Is something added or absent?) and authentication (Can I rely on it?).
Pondering the essential nature of evidence can't remain the exclusive province of law review commentators and law school professors.
As never before, trial lawyers in the trenches must think hard about just what is the evidence? What are we really looking for? What gets us closer to the truth?
The quoted passage comes at the end of Ball's recent column about e-discovery in Law Technology News: "E-Evidence: Who Let the Dogs Out?" If you want to know why you might be wasting time asking the wrong questions about e-discovery, read the whole thing.