Barg Coffin Lewis & Trapp, LLP Articles

August 1996

The Delete Key Does Not Work: The Inside Story On E-Mail And Litigation

by Jonathan Polland

Companies are increasingly using electronic mail ("E-Mail") to conduct business and communicate both internally and externally. The increased use of E-Mail, and the tendency among users to be spontaneous and unguarded in their E-Mail messages, has not escaped the attention of litigation attorneys. Attorneys in employment and business litigation now routinely demand and receive the opposing party's E-Mail messages through discovery. The purpose of this article is to identify issues which attorneys should consider when discoverable information regarding their case is contained in E-Mail.

THE CHARACTERISTICS OF E-MAIL

Many E-Mail users find false comfort in the belief that E-Mail can be deleted, and therefore will not show up later to haunt the sender or recipient of the message. In fact, as illustrated in the following description of the life of a hypothetical E-Mail message, E-Mail messages are difficult to destroy.

The Life of a Hypothetical E-Mail Message

After sending a particularly unflattering E-Mail regarding a third party, subordinate, or co-worker, suppose an employee of your client ("Mr. Sender") decides to delete the message by pressing his computer's "delete" key. Suppose the next day Mr. Sender even goes so far as to instruct the recipients of the message to delete it as well. These efforts are not likely to result in the complete destruction of the message.

For example, before Mr. Sender or the recipients delete the message, it could easily have been placed on a backup tape by your client's MIS (Management Information Systems) department as part of a routine sweep of computer files. Moreover, even if Mr. Sender, the original recipients, and anyone else to whom the original recipients forwarded the message, all hit their respective "delete" keys before the backup tape was prepared, the E-Mail message still exists on the hard drives of the computers from which the message originated, and to which it was sent. The E-Mail message remains on these hard drives unless and until the portion of the hard drives on which the message resides is copied over by another E-Mail message or another file. The "delete" key merely removes the file name identifying the E-Mail message on the hard drive, thus making the message more difficult (although not impossible) to retrieve.

In subsequent litigation, the deleted E-Mail message may be "undeleted" by a forensic expert working for an adverse party. Moreover, Mr. Sender's attempt to delete the E-Mail message might itself become a significant fact in the litigation, especially if the attempted deletion occurred just after Mr. Sender learned about the plaintiff's claim.

The Spontaneous and Informal Nature of E-Mail

E-mail communications are generally less formal and thoughtful than paper communications. E-Mail messages are frequently prepared and sent before the author has had an opportunity to fully consider the facts and issues about which he or she is communicating. The spontaneous and unguarded nature of E-Mail can lead to the creation of "smoking guns" which can have a significant impact on the outcome of a case. For example, in United States of America v. Keystone Sanitation Company, Inc. et al., 885 F.Supp. 672, 675 (1994) (D.C. Pa.) the following E-Mail message was produced by the defendant in an environmental tort case: "I see out [sic] major goal, apart from defending the environmental liability claims, is to encourage the Noels to take as much out of the corporation as they legitimately can do." As one might expect, the Court did not view the defendant's strategy of draining corporate assets favorably. This example demonstrates how an E-Mail message, perhaps as private as an off hand comment at the water cooler, can become dangerously public.

Using E-Mail To Reconstruct Corporate History

Perhaps of even greater significance to litigation attorneys than the occasional "smoking guns," are the every day messages which are necessary to reconstruct relevant corporate events or transactions. Prior to the widespread use of E-Mail, information regarding a particular event or transaction was found in the paper documents maintained by the parties and in the memories of key witnesses. As business people increasingly use E-Mail to communicate regarding corporate events and decisions, and rely less on paper documents, certain key information can only be derived by reviewing the relevant E-Mail communications. An attorney who merely reviews the paper documents in the client's and the opposing party's possession, and then interviews or deposes the relevant witnesses, may not get the complete story. Thus, litigation attorneys should review their client's E-Mail as part of all internal investigations.

RULES GOVERNING THE DISCOVERY OF E-MAIL

E-Mail is subject to the same discovery rules as paper documents. See generally, Patrick, An Attorney's Guide to Protecting, Discovering and Producing Electronic Information (LRP Publications 1995), Chapter 4. Indeed, electronic media, which includes E-Mail, is within the definition of documents and writings under state and federal law. See generally, Federal Rule of Civil Procedure 34(a); and California Evidence Code sections 250 and 255. Moreover, the party propounding E-Mail discovery is entitled to access to the original electronic media. Access to original tapes should be requested, since certain information which resides on the electronic media may not be revealed when E-Mail communications are produced in paper form.

Since electronic media is within the definition of documents under both state and federal law, a party responding to a document request is under an obligation to search for and produce non-privileged E-Mail messages responsive to a non-objectionable document request, even if the propounding party has not specifically requested E-Mail. Moreover, many of the form document requests currently in use include electronic media, and even E-Mail, within the definition of "document". (For a sample definition of "Electronic Data" which may be used in a document request, see Patrick, An Attorney's Guide to Protecting, Discovering and Producing Electronic Information, supra, App. E.)

Privacy Issues

In attempting to respond to discovery requests, and identify responsive E-Mail messages, you may encounter an employee of one of your clients who resists production on the grounds that his or her E-Mail communications are private. The employee may believe that because he or she has a password, limiting access to his or her E-Mail messages, those messages are not discoverable.

An employee's expectation of privacy with respect to his or her E-Mail will not prevent an opposing party from obtaining access to that E-Mail if it is otherwise discoverable and not subject to any cognizable privilege, such as the attorney-client privilege. That is, a corporate entity will not be able to successfully resist production of E-Mail relevant to an issue in dispute in the litigation on the grounds that the employees of that corporation believe that their E-Mails are private.

Therefore, consider advising corporate clients to develop an E-Mail policy that makes clear to their employees that E-Mail communications are accessible to the corporation for any business purpose, including defending and prosecuting litigation, and that E-Mail communications should be treated like any other document placed in the company's files. Such a policy should help defeat any expectation of privacy that the employees may have regarding their E-Mail communications. It should also encourage employees to be more thoughtful in their E-Mail messages, and thus reduce the frequency of the so-called "smoking guns" discussed above.

Attorney-Client Privilege Issues

E-Mail messages between attorneys and clients are subject to the same rules that govern other attorney-client communications. Given the lack of privacy on the Internet, substantive communications between outside counsel and client representatives should not be conducted via E-Mail, unless precautions are taken, such as encryption, to insure the privacy of those messages. Encryption allows users to send messages which cannot be deciphered by third parties who do not have access to the encryption code. However, caution should be exercised even with respect to encrypted E-Mail communications, and E-Mail communications that are not sent over the Internet, such as messages between in-house counsel and client representatives.

E-Mail messages are easily forwarded. The ease and frequency with which E-Mail messages are forwarded, often without the knowledge or permission of the author of the original message, can result in the waiver of the attorney-client privilege. For example, a client forwarding a communication from an attorney to an individual outside the company risks waiving the attorney-client privilege. Moreover, a client representative may waive the attorney-client privilege by forwarding a privileged message to another employee of that company. Under the holding in Cuno Inc. v. Pall Corp., 121 F.R.D. 198, 203 (E.D.N.Y. 1988), the attorney-client privilege is waived if the original recipient repeats the message or forwards it to another corporate employee who does not have "a need to know" the information contained in the original message. See also, Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980) (where communications are made known to persons within a corporation or government agency who do not have a need to know them, the confidentiality requirement of the attorney-client privilege is not satisfied).

The potential waiver of the attorney-client privilege, through the forwarding of otherwise privileged communications to employees who do not have a "need to know", applies to both paper and E-Mail communications. However, given the ease with which E-Mail communications can be forwarded, the risk of such a waiver is greater with respect to E-Mail communications. Thus, when counsel communicate with their client representatives by E-Mail, it may be appropriate to instruct the recipient of the message to only forward the message with the knowledge and consent of the original author.

STEPS TO CONSIDER WHEN PROPOUNDING E-MAIL DISCOVERY

When retained by a party to a dispute which may result in litigation, consider sending a letter to the opposing party requesting that they preserve relevant information contained on their computer system. The letter should advise the opposing party of the nature of the dispute and the likelihood of litigation, and request that all potentially relevant electronic media, including E-Mail, be saved. If such a letter is not sent, the opposing party may not save or retain E-Mail communications that may be helpful to your client's position. Moreover, if such a letter is sent and ignored by the opposing party, and relevant E-Mail communications are destroyed, you may be in a position to request sanctions from the court. Another alternative, after litigation has begun, is to propose that the parties execute a stipulation requiring that relevant electronic data be saved.

Another step to consider when relevant information may be stored on the opposing party's computer system, is the retention of experts to assist in the collection and organization of electronic data. There are at least two types of computer experts to consider retaining: 1) a management information systems expert; and 2) a forensic expert. A management information systems expert can help fashion discovery requests, and assist at the deposition of the opposing party's management information systems representative. This expert should be able to locate relevant data on the opposing party's computer system, and assist in the duplication and organization of that data. A forensic expert may be able to retrieve "deleted" E-Mail messages or electronic data.

Although forensic experts have received substantial media attention in cases in which "deleted" E-Mail messages were recovered, initially it may be more important to have a management information systems expert. A forensic expert will not necessarily be skilled in collecting and organizing large volumes of relevant electronic data which have not been deleted.

Finally, before taking steps to aggressively pursue discovery of E-Mail and electronic data from your opponent, consider the impact such a strategy will have on your client. E-Mail discovery, like all litigation, is a double-edged sword. Retaining a management information systems expert and a forensic expert, and deposing the opposing party's MIS personnel, will inspire your adversary do the same thing. Thus, before aggressively seeking discovery of the opposing party's E-Mail, consider how well your client would fare if a team of computer experts, retained by your adversary, scrutinized your client's data files.

CONCLUSION

As E-Mail takes on increasing importance in the business world, it will also take on increasing importance in business litigation. Consequently, attorney's must educate their clients, and their clients' employees, regarding the potential use of E-Mail in litigation. E-Mail users must learn not to include statements in E-Mail messages that they would not be comfortable showing to a jury, should the subject of their E-Mail messages end up in litigation. Of equal importance is the need to save and retrieve E-Mail messages which contain information supporting a company's decisions or actions.

These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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