SIX SIMPLE STEPS TO PREVENT E-MAIL FROM COMING BACK TO BITE YOU

摘要

Pretrial discovery of e-mails may represent the most significant change in litigation in the last decade. The litigation landscape is littered with cases where "smoking gun" e-mails have come to light during discovery. Weekly, investigations and decisions are turning on e-mails. In a highly publicized trial, a federal judge in New York recently overruled efforts to exclude e-mails that he termed "explosive." With employees now sending billions of e-mails a day, the number of verdicts turning on damaging e-mails will undoubtedly continue to increase. Why are e-mails potentially so "explosive"? The answer is simple: people are careless with them. First, e-mails are written rapidly, often with little review or contemplation. This results in haphazard and often jovial statements, which, before a jury, may be interpreted in a way adverse to the author's interests or intent. Second, e-mails often contain extraneous information or attachments of prior communications that may open a Pandora's box of discovery in areas not previously contemplated. Third, e-mails often contain pejorative language, which, at trial, can make a witness squirm. Finally, sloppy e-mail communications may result in waiver of applicable privileges when a privileged e-mail is sent to persons outside the company, or even to employees within the company that do not need to know about the privileged communication.