According to one survey, more than 99 percent of the world's information is now generated electronically. However, what most lawyers fail to recognize is that not all of that information is necessarily in the form of emails and computer files. Indeed, as society continues to abandon the quaintness of traditional paper records and becomes ever more reliant on digital technology, it is imperative that in-house counsel recognize the implications of looking for electronically stored information in places other than just email. More particularly, giving consideration to the many places in which metadata can hide in the modern world can greatly enhance your company's chances of success in litigation, while at the same time helping to minimize the growing costs of e-discovery.

As the two examples we included below demonstrate, the discovery paradigm is no longer limited to the traditional approach of spending exorbitant amounts of time and money requesting and reviewing thousands of useless emails in search of the one smoking gun. Rather, the search for valuable metadata, and the ability to use it effectively in practice, require imagination, experience and skill well-beyond the typical “data dump” of searching through emails.

Let's start with a hypothetical. Imagine you are in-house counsel for a trucking company that is a defendant in a wrongful death action because one of its trucks was involved in a catastrophic accident with another driver, and there is no question that your driver was negligent. Typically, the corporation would be vicariously liable for any torts that were committed by the employee truck driver under the doctrine of respondeat superior, so long as the accident occurred within the scope of the driver's employment. Your company is now facing a multimillion-dollar lawsuit and your company's only defense is to try to prove that your driver was acting outside the scope of his employment when the accident occurred.