In a moment of modern high courtroom drama, a lawyer is less likely to produce the fabled smoking gun than a damning email that destroys the opposition’s case.
The ubiquity of email presents risks and opportunities to companies that may become involved in a legal dispute. As David Harris says (Email burgers), “these days email increasingly exists at the level of fast food — we take it so much for granted that it has ceased to be very interesting or noteworthy”.
However, something that is not always taken for granted is the usefulness — and danger — of email as legal evidence. In court, an email may be just as important as a signed letter, a contract or a tape recording of a conversation. However, from a users’ perspective, email is often treated like just another telephone conversation instead of what the law treats it as — a discoverable document able to be used in court.
Email is being successfully used in many cases both to defend and bring claims. In one sexual harassment case, the plaintiff had portrayed herself as a pious, shy employee who had suffered greatly when her supervisor allegedly questioned her about her dating history. But her claim failed when a search of her email turned up hundreds of pages of pornographic material and jokes.
In another case, a supervisor’s forwarded emails containing jokes were produced as evidence of his discriminatory attitude.
Even the most sophisticated users have been stung. The most famous example is the Microsoft antitrust trial, where Microsoft was caught out by embarrassing information found in its own email archives.
Corporate email archives are fertile ground for discovery, the legal procedure used to obtain documentary evidence in preparation for litigation. These typically contain so much information that search-and-index software is a valuable tool to assist with this process.
This also means that advantages can be gained by those who understand the process of electronic discovery. There are two key reasons for this.
First is the persistence of email. Messages thought to be long since “deleted” may be held by other users or lurk in the dark corners of a hard disk. In addition, the prudent IT department’s tendency is to create and keep as much backed up data as possible. These are liable to be seized for evidential purposes and may turn out to be time bombs if the company becomes embroiled in a dispute.
The legal profession’s increasing use of computer forensics and DERTs — digital evidence recovery teams — means that data long thought to be deleted can be recovered for evidential purposes.
Secondly, the informal nature of email increases the potential to create legally compromising evidence. It is well known that email messages are often more informal and candid than letters typed and signed on company letterhead.
Many firms now use monitoring software and services to monitor whether employees are engaging in inappropriate or dangerous communications. While this will be effective in reducing inappropriate use, it does, however, give rise to further legal issues that need to be addressed before monitoring of employees’ emails occurs.
As the value of documentary evidence increases and ever more corporate information is stored electronically, the possibility of unearthing a smoking gun email becomes greater.
For the technology-savvy, careful attention to the process of discovering electronic information can result in significant advantages that may spell the difference between winning, settling or losing a case.
Averill Parkinson is a partner and Guy Burgess is a law graduate in Clendon Feeney’s technology law team.