“Take nothing on its looks; take everything on evidence. There’s no better rule.”  I quote this line from Charles Dickens’ Great Expectations at the end of all my emails.  It’s my guiding light.  Sure, how things look matters, but how things truly are matters more.  At least it should be that way. 

I reflect on all this while listening to a webinar presented by my friends, Doug Austin and Kelly Twigger, and moderated by Brett Burney.  They discussed so-called Modern Attachments or, as they prefer to call them, Hyperlinked Files.  In a nutshell, Modern Attachments (as Microsoft calls them) are files that are stored in the Cloud and accessed by links transmitted within an email as distinguished from documents embedded within the transmitting e-mail and thus traveling with the e-mail rather than being retrieved by the recipient clicking on a hyperlink.  The debate about the extent of the duty to preserve, collect and produce these modern attachments rages on, and I don’t post here to rehash that back-and-forth.  My purpose is to tackle some misinformation advanced as a basis to exclude modern attachments from the reach of discovery.

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.

Based on my experience, most modern attachments (e.g., 85-95%) are not altered after transmittal. 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.  This will allow us to know the incidence of post-transmittal alteration based on hard evidence rather than assumptions or intuition.  I expect the incidence will vary between disciplines and corporate cultures, but that, too, is worth measuring.

Why hasn’t this been done?  A suspicious mind would conclude that those holding the data–who also happen to be the ones resisting the obligation to produce Modern Attachments–don’t want to know the metrics. Less archly, maybe they simply haven’t taken the time to measure, as guessing is easier. As they say in The Man Who Shot Liberty Valance, “This is the West, sir. When the legend becomes fact, print the legend.”  Facts are inconvenient. They’re sticking with the legend.

But it’s time to quit that.  It’s time to take everything on evidence.