It was usually fairly easy to give a date to a document in the days of paper files. In the absence of evidence to the contrary, one accepted the date typed or written on the face of document. If there was no date, the document’s place in the file was often a reasonable guide. There were usually few enough documents that one could look at the contents and draw a conclusion, at least as to roughly where in the date order list a document should appear. Since the lists themselves were hand-typed, the description could include “of approximately this date” or some such qualification to draw attention to the degree of uncertainty.

You cannot do that now – the volumes are too great for this kind of detective work and, except for scanned paper, descriptions  generally consist of a file name or subject line derived automatically from the file. Besides, electronic files all carry their own dates, don’t they?

Indeed they do, but the problem lies in the plural – mail files in particular, but other files as well, carry more than one date and it is not necessarily right to use the same source field when deciding where a document should lie relative to others. This does not always matter, but there are many cases where the sequence of documents is critical or where arguments about precise timing count for a great deal.

As with so many other aspects of electronic disclosure, this is one of those areas where lawyers need at least a surface understanding of what may be involved – enough to know what questions to ask both their own experts and their opponents or, at least, to know that there are options.

This kind of point is well covered in the website Where is my Data? Having been less than charitable about a particular post on that site recently, I am glad to be able to point immediately to a couple of posts which support my view that it is a valuable resource on technical matters. Two posts, Electronic Discovery: Dates and Electronic Discovery: Dates and Questions address the difficulties which can arise due to multiple dates, not merely within the file but derived from the way in which it has been handled. The first of these deals with the different sources of dates, and the second considers how liaison between the lawyer and the person handling the data may be either helpful or necessary depending on the circumstances.

This is the kind of thing which makes lawyers throw up their hands at the whole subject of electronic documents. They point to the fact that a printed e-mail will bear only one date. That may well be the correct date. As the articles show, however, it may equally be the wrong date in terms of the evidential value of the document. It only matters when it matters, if you see what I mean. It matters when your witness gives evidence which can be undermined by a closer look at a document’s date. It matters when you miss the chance to cross-examine the other side’s witness because you possessed, but did not know that you possessed, information to challenge his account of events.

It is worth knowing, at the least, that this apparently incontrovertible piece of data may be open to question. You may decide that your case does not warrant this degree of attention, but that decision should be made advisedly, and not by default.

Home