The key piece of evidence in a recent trial was a three word e-mail sent (in a hurry) at 5:30 AM. The author was replying to an email and thought of his response as mere conversation, rather than as a legally binding document, until it was received as Exhibit A in court. It was then enlarged, placed on a 24″ by 36″ poster board and used effectively in final argument.
In the event of litigation (or presidential elections), courts require that all electronically stored information, including e-mails, be located and produced to the other side. Even deleted emails can be recovered with the proper technology.
So gently touching that mouse and hitting “Send” can have powerful and expensive ramifications.
- To avoid accidentally hitting send, don’t type the name of the recipient until ready or just send to yourself. If you do send by mistake, the email can be retrieved, but it’s still discoverable.
- Print the e-mail and imagine how it would look as an exhibit at trial.
- Don’t rely on Spellcheck. Check for spelling, punctuation and proper grammar, as you would with a letter.
- If sufficiently important, write an old fashioned letter and just attach it to the email.
- Unless there is some urgency, pause for at least five minutes to review
- Don’t send when in a hurry or when tired. That won’t be an excuse to a judge or jury.
- Rather than hitting Reply, send a separate response email so that prior (and possibly harmful) earlier emails are not discoverable. This also helps avoid showing the length of time it took for the response to have been considered.
- E-mails to your lawyer are privileged and protected, but if others are copied on your response, the protection could be lost.
- Even Blind Copies are discoverable.
- The shorter the better.
And finally…don’t own a computer.
Many people become indicted, go to jail, and lose lawsuits due to the careless use of emails. As my mother always cautioned me: be careful.
If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.