Electronic Evidence as the Smoking Gun

NOTE: THIS IS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE.

Electronic communications--particularly email--may contain a treasure trove of evidence in commercial litigation matters. There are three key reasons for this fact. First, email is a very informal means of communication. Why? I don't know, it just is. Though I personally insist on specific grammer and sentence structure in my "hardcopy" written correspondence, court pleadings, etc., in emails I sometimes choose not to follow the rules of written English.

Second, though intellectually many of us know it is not, email "feels" anonymous. I'm sure there have been studies conducted in effort to understand why email feels anonymous. Maybe it's because of the instantaneous nature of email--you can simply vent your emotions and knee-jerk reactions immediately and press the send button, rather than having time to reflect on your written thoughts as you otherwise would if you were forced to sit down and write a letter; sign it with your own hand; put it in an envelope; put a stamp on in it; and take it to the mailbox and mail it. Whatever the reason(s), the fact of the matter is that email does feel anonymous.

The third reason email evidence can contain critical evidence in a commercial litigation case: permanence and retrievability. Most people don't realize that when they "delete" an email from their email program it actually remains on the computer or network unless and until the portions of the computer's memory containing the email are overwritten by other information. You can be certain, however, that every single electronic commuincation you make--email or otherwise--is being recorded somewhere. Perhaps on your company's network server, perhaps at your Internet service provider, or perhaps on your own computer's hard drive. Savvy litigators know this fact and, depending the stakes of the case, you could end up receiving a letter such as this should your business find itself in a business dispute:

Dear Mr. John Doe:

This is a notice and demand that evidence identified below in paragraphs 2 through 5 must be immediately preserved and retained by you until further written notice from the undersigned. This request is essential, as a paper printout of text contained in a computer file does not completely reflect all information contained within the electronic file.

The continued operation of the computer systems identified herein will likely result in the destruction of relevant evidence due to the fact that electronic evidence can be easily altered, deleted or otherwise modified. THE FAILURE TO PRESERVE AND RETAIN THE ELECTRONIC DATA OUTLINED IN THIS NOTICE CONSTITUTES SPOLIATION OF EVIDENCE AND WILL SUBJECT YOU TO LEGAL CLAIMS FOR DAMAGES AND/OR EVIDENTIARY AND MONETARY SANCTIONS.

For purposes of this notice,