E-mail: Making the Target Smaller in Litigation

Norbert F. Kugele

Source: Business Update

Imagine that your company is involved in a lawsuit with one of its suppliers and you are testifying about how the supplier stopped making timely deliveries. After you've explained the situation to the jury, the attorney for the other side confronts you with one of your company's internal e-mail messages in which you seem to say that the suppliers' failure to deliver was your fault. While such confrontations were once seen only in high-stakes, big profile litigation, they are becoming more and more commonplace.

While a novelty for many in the early 90's, e-mail has become pervasive and for many companies the business communication tool of choice. The number of e-mail communications are reportedly billions per year. Because e-mail communication for many companies has replaced the written memo, e-mail communications are now almost a routine target for discovery in litigation. If your company is involved in litigation, it can expect a discovery request demanding that it conduct a search of its computers for e-mail records relating to the controversy.

Responding to such requests can be expensive and time-consuming. You will likely need to run search routines on your computers and then have someone read each message to make sure that it is responsive and does not include confidential business data or privileged communications. Moreover, e-mail messages tend to survive even when they appear to have been deleted. For example, when an individual deletes an e-mail message from her mailbox, the e-mail program may simply move the file into a deleted message file folder, where the message continues to exist as a live file. Even if deleted from that file folder, the actual message may survive on the individual's computer or on the file server until another file is saved over it–and even then a fragment of it may survive if the new file isn't large enough to completely write over the old file. Compounding this problem is the fact that the message may exist on the computers of the author, the recipient, anyone else copied on the message, and anybody else to whom the message has been forwarded. Finally, a copy of the message may exist on back-up tapes made of the e-mail system.

One way to at least reduce the number of e-mails that linger on your system is to be sure that your company has a document retention policy that includes e-mail. With your IT department, you should establish a time frame after which electronic records–particularly "deleted" email messages–are deleted from the system and back-up tapes are recycled. This will limit the number of records that will need to be searched and reviewed when responding to discovery requests.

As a practical matter, your company probably has some kind of informal electronic document retention policy, as computer files may get purged every now and then when memory resources are stretched. A systematic destruction practice established by a document retention policy is more desirable, however, than an occasional house-cleaning. If you ever get involved in litigation in which e-mail communications are at issue, then the timing of the occasional house-cleaning may look suspicious, particularly if the house-cleaning happened to take place shortly after the events at issue occurred or right before the lawsuit was filed. It is better to have a policy that calls for the destruction of e-mail messages and back-up tapes after a set number of days, so that you can point to an established, regularly scheduled business practice.

Just as important as an established destruction practice is a procedure for suspending this practice and preserving evidence that is relevant to existing claims. If you are aware of a claim against your company, or of a claim that your company has against someone else, then you have a duty (and perhaps even a need) to preserve evidence relating to that claim, including relevant e-mail correspondence. Although it is not clearly settled as to when this duty arises, some courts have found that the duty exists when you know about the claim, even if a lawsuit has not yet been filed. Courts have sanctioned companies that ignore this duty. The sanction could be a simple fine, but it could also be much more severe, such as an instruction to the jurors that they can presume that you destroyed the messages because they were harmful to your case. In some situations, the court has gone so far as to enter judgment against the company that failed to preserve the evidence.

In short, your company should ensure that it has an effective document retention policy that covers e-mail messages. While such policies will not eliminate the possibility of being confronted with old e-mail messages at trial, they can reduce the number of messages that linger on your company's computers and reduce the costs of responding to discovery.

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Norbert F. Kugele is a Partner in the Grand Rapids office of Warner Norcross & Judd. Mr. Kugele focuses his practice on computer, Internet and e-commerce law; intellectual property litigation including trademark and copyright infringement; and commercial litigation. He may be reached directly at 616.752.2186. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice.