For a litigator, nothing compares to
finding a juicy document that provides a sound bite he can repeatedly parade before a jury. Today, as letters
and memos are displaced by the widespread use of e-mail, discovering documents that could have a big impact on a
claim becomes at once easier, and cost-lier, for determined litigants.
The benefit of technology’s speedy
communication is a double-edged
sword. Ideas and sentiments are disseminated rapidly and often are produced
without much forethought. As messages
are forever captured in both the sender’s
and recipient’s hard drives, they can
offer unshakeable evidence of a position
taken or a state of mind that cannot be
retracted later.
Smart Business spoke to Tom
Newmeyer, founding partner at Newport
Beach-based Newmeyer & Dillion LLP,
about the consequences of e-mail communications.
How do you protect yourself in your electronic communications?
By being careful in everything you
write. E-mails are fraught with danger
because they offer clear-cut and damning evidence for a litigator. In this
regard, anyone who regularly communicates through e-mail could learn a valuable lesson from attorneys skilled at taking depositions. In a deposition, lawyers
will calculate their questions in the hope
that the deposed party will slip up —
reveal something that fits perfectly with
their client’s argument. In effect, they’re
searching for a ‘sound bite.’ Similarly, e-mails offer the same potential to trip you
up if you do not carefully consider everything you write. You cannot allow a
casually rendered thought or phrase —
the ‘e-mail sound bite’ — to eat up your
defense.
How is e-mail subject to discovery?
California defines discovery broadly. If
something is reasonably calculated to
lead to the discovery of admissible evidence, it is subject to discovery. This
means that courts could, and do, allow
requests to obtain the entire contents of
hard drives.
In the case of e-mails, it is hard to
argue that a request for copies of electronic communications pertaining to the
litigation is irrelevant. E-mails offer a
permanent record of communications.
Plus, attorneys are not necessarily looking for that one smoking-gun e-mail; it’s
all the responses that rise from an initial
communication or that pertain to a claim
that could be subject to discovery.
Is there a hidden cost that arises when individuals and businesses prefer using e-mail?
The most obvious change from a
decade ago is that there is more information to retrieve because so much
communication is done electronically.
It’s not unusual to find tens of thousands
of pages of documents, mostly consisting of e-mails, to back up an allegation.
The cost of a lawsuit, consequently,
rises drastically, because you now must
find, produce and review a large volume
of communication. And as each e-mail is
provided on a single sheet of paper, the number of pages offered in a defense literally runs into the thousands. The
result is that the cost of defending a lawsuit is dramatically higher than it was a
decade ago.
What advice do you offer the business community in protecting itself?
It’s extremely important to teach your
employees how to write an e-mail. The
old saw — never write anything you
wouldn’t want your mother to read —
has never been truer than it is today.
Don’t disclose information in an e-mail
that you normally would not include in
paper form. Also, always assume that
someone other than the recipient will
read your mail, perhaps even a judge or
juror.
Be bland and dispassionate. Don’t be
funny because jokes do not translate
well in a courtroom. Stay away from
emotional words, such as, ‘I’d love to do
it.’ Say, instead, ‘It seems like a good
opportunity at the moment.’
Also, never write anything in a state of
excitement. Remain constantly on guard
for what could later be construed as a
threat, a promise to enter into an agreement, slander, discriminatory practices
or any number of conditions that could
be subject to a lawsuit.
Unlike letters, e-mails are produced
almost spontaneously, written informally
and delivered instantly. I’ve seen language
in e-mails of a kind that never could
appear in letters, which generally are
sober, reserved and lack colloquialisms.
A cautionary note here: many people
don’t know this, but there are ways to
search a document by using meta data, a
method that allows the viewer to see all
previous changes to a document. As
attorneys have grown savvier about the
available technology, they increasingly
have used meta searches on key documents to back their arguments.
TOM NEWMEYER is a founding partner at Newmeyer & Dillion
LLP based in Newport Beach. Reach him at (949) 854-7000 or at
[email protected].