Electronic Evidence As The Smoking Gun
By Henry J. Fasthoff, IV, Fri Dec 9th
NOTE: THIS IS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY. IT ISNOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE.
Electronic communications--particularly email--may contain atreasure trove of evidence in commercial litigation matters.There are three key reasons for this fact. First, email is avery informal means of communication. Why? I don't know, it justis. Though I personally insist on specific grammer and sentencestructure in my "hardcopy" written correspondence, courtpleadings, etc., in emails I sometimes choose not to follow therules of written English.
Second, though intellectually many of us know it is not, email"feels" anonymous. I'm sure there have been studies conducted ineffort to understand why email feels anonymous. Maybe it'sbecause of the instantaneous nature of email--you can simplyvent your emotions and knee-jerk reactions immediately and pressthe send button, rather than having time to reflect on yourwritten thoughts as you otherwise would if you were forced tosit down and write a letter; sign it with your own hand; put itin an envelope; put a stamp on in it; and take it to the mailboxand mail it. Whatever the reason(s), the fact of the matter isthat email does feel anonymous.
The third reason email evidence can contain critical evidence ina commercial litigation case: permanence and retrievability.Most people don't realize that when they "delete" an email fromtheir email program it actually remains on the computer ornetwork unless and until the portions of the computer's memorycontaining the email are overwritten by other information. Youcan be certain, however, that every single electroniccommuincation you make--email or otherwise--is being recordedsomewhere. Perhaps on your company's network server, perhaps atyour Internet service provider, or perhaps on your owncomputer's hard drive. Savvy litigators know this fact and,depending the stakes of the case, you could end up receiving aletter such as this should your business find itself in abusiness dispute:
Dear Mr. John Doe:
This is a notice and demand that evidence identified below inparagraphs 2 through 5 must be immediately preserved andretained by you until further written notice from theundersigned. This request is essential, as a paper printout oftext contained in a computer file does not completely reflectall information contained within the electronic file.
The continued operation of the computer systems identifiedherein will likely result in the destruction of relevantevidence due to the fact that electronic evidence can be easilyaltered, deleted or otherwise modified. THE FAILURE TO PRESERVEAND RETAIN THE ELECTRONIC DATA OUTLINED IN THIS NOTICECONSTITUTES SPOLIATION OF EVIDENCE AND WILL SUBJECT YOU TO LEGALCLAIMS FOR
