Dangerous Digital Information Email as “Exhibit A”

By Christopher Griffin

Because electronic information has become increasingly important in today’s business world, it has become equally important as evidence in modern litigation. According to MIT’s Center for Technology, Policy, and Industrial Development, 50 percent of evidence in cases today is email, and U.S. companies spend $4.6 billion annually to analyze those emails. In addition, several courts have imposed severe penalties on companies that failed to maintain or produce electronic information in the course of litigation discovery. In some of those cases they have given juries an “adverse inference” instruction, allowing the jurors to assume that unrecoverable emails would negatively have impacted the defendant’s case. And, in one such case, the court permitted this negative inference despite the defense counsel’s repeated directions to company employees not to delete any electronic information, and requests to company IT personnel to stop recycling backup tapes, finding that those actions were insufficient because certain electronic evidence still was not retained.

New Regulations

New federal court rules regarding litigation discovery became effective December 1, 2006. Amended Rule 34(a) changed the definition of “document” to include “electronically stored information . . . stored in any medium from which information can be obtained.” This new definition removes any question whether electronic records are included in a litigation request for production. Thus, documents which now must be produced – and therefore stored and searched – include those maintained on personal computer hard drives, servers, mainframes, home computers, PDAs, external drives, digitally preserved voicemails, text messages, CDs, tapes, flash drives, and floppy discs. That said, it is critically important for companies to monitor employees’ use of these devices and remain prepared to search them when called upon to produce litigation documents.

Perhaps because of the seemingly harsh results which occurred in the cases described above, the amended rules also include a “safe harbor” provision, which limits the courts’ ability to order sanctions when electronic evidence is destroyed pursuant to a company’s routine, good-faith electronic information system/document retention policies. However, this safe harbor is not a “free pass” for the destruction of records by the company’s normal procedures. That is, companies (a) should destroy no documents relevant to threatened or expected litigation, and (b) have a duty to preserve back-up data if the information is “likely to be discoverable and not available from reasonably accessible sources.”

These duties are best met by creation of a “litigation hold” process. Best practices regarding litigation holds can be viewed in two parts. First, if no litigation exists or is threatened, the company should understand its legal obligations regarding document retention and production. The company also should implement clear policies for the retention of electronic records, and develop litigation hold procedures that will occur when the company learns that litigation is likely.

These proactive steps will allow the company to be better positioned both to provide the necessary documents in litigation and to demonstrate that, even if some documents are lost, the company has done all that it reasonably could be expected to have done to ensure against that loss or destruction.

Litigation

Once litigation begins, the company should immediately implement its litigation hold process, including sending notices to its employees to suspend any destruction of information that conceivably could be relevant to the case. The company also should send notices to key third parties, such as accountants and consultants, to request that they too not destroy relevant information. Second, the company should meet with IT and records management personnel to ensure compliance with the litigation hold. Finally, the company should continue to monitor its compliance with the litigation hold in order to prevent any inadvertent destruction of potentially relevant documents.

Be Proactive

Once companies produce electronic information, they often are disadvantaged by emails that are, in a word, inappropriate. Hastily written emails taken out of context often prove to be the “smoking gun” in litigation. Too often employees send emails that appear to be intended less to convey necessary information than to impress others, vent frustrations, force premature action, “pass the buck” to others, or simply to entertain the reader. All of these types of email are dangerous in the hands of one’s litigation opponents. Thus, it is important that employees be instructed to recognize and avoid dangerous electronic writing.

Primarily, this involves creating an awareness that every email written and sent will be read by the opponent’s lawyers, and often will be stretched severely out of context. And, there are a few simple rules which, if followed, will minimize the creation of these problematic communications, that include:

• Avoid careless admissions when writing to inform of bad news.

• Avoid exaggeration and minimize inaccurate or potentially misleading words.

• Provide only necessary information and avoid irrelevant or unnecessary, excessive information.

• Avoid “creative” writing with sarcasm, drama, or “humor.”

• Write only what needs to be said to meet the immediate need, and only what one knows, not what one speculates, or assumes to be true.

• Avoid characterizations of other persons, especially other persons within the company, that are unnecessary to the message at hand.

Start educating your employees regarding email rules now. If you don’t have a plan yet, now is the time to implement one. Formulate your policies and waste no time sharing them with your employees.

About the Author
Christopher Griffin is senior counsel with Foley & Lardner LLP’s Tampa office. He is a member of the firm's General Commercial Litigation and Appellate Practices.