the last couple of weeks, with the political issue of whether Ms. Clinton should turn over the server that housed her private emails, to recover emails that were deleted. But what about the legal issues involving emails?
We will look at two of them:
1) Are old personal emails are discoverable (able to be reviewed by the other side in a lawsuit);
2) Can deleted emails be retrieved?
Yup, maybe. The rules of evidence provide that any material (“material” clearly now includes email and other social media) that is reasonably calculated to lead to discoverable evidence, must be produced and exchanged between lawyers when requested. This means that if you have sent an email to a friend discussing or addressing the facts of your case (for instance, a car accident, medical treatment in an injury case, communications to third parties in a divorce case, etc.) those emails may have to be turned over to the other side when requested in discovery. Of course, the question of whether the emails in question are discoverable and material may be disputed, whereby a judge will need to resolve whether they need to be produced. But the lesson is clear: If you write the email, and hit send, be aware that someone other than the sender may ultimately see it, and that someone might be a judge or juror. Electronically Stored Information (ESI) has a long shelf life, so here is a good rule of thumb: If you are involved, or believe that you may be involved in a lawsuit, don’t discuss any part of it electronically, be it via email or social media. To paraphrase, loose fingers sink lawsuits.
First, if the emails were intentionally deleted because you wanted them gone so you didn’t have to produce them, that’s a big no-no. You could get fined and sanctioned by the court, and your lawyer, if he or she were involved in the deletion scheme , could get fined and disbarred. So if this is an issue facing you now, and even if you feel that you will die a thousand deaths if anyone sees those emails, Do. Not. Delete. The legal term for this spoliation, and it could completely torpedo your case. Work with your lawyer and figure out how to best deal with the situation.
Secondly, if the emails were accidentally deleted, or lost through a computer crash, the court could order recovery measures from the email server in question. The technology is there to do this, and it will be interesting to see if that comes to fruition in the Hillary Clinton email saga.
So from a legal perspective, every email that you send could reappear in places that you never expected. You should also realize that the recipient of your email might also be involved in a lawsuit that could implicate your emails, and potentially you.
So here is my lawyerly take in all of this: Communicate via email only those things that you are willing to say out loud at Thanksgiving Dinner, with all of your family and close friends present. Business emails are for business, and personal emails should be G-rated. If really personal things need to be communicated, or if you need to vent, communicate it in person (preferably), or on the phone, or even go old school and send a letter! If you follow these rules, you will sleep much better should your emails reappear in a lawsuit or legal dispute context. Every day on twitter people are apologizing for writing intemperate things, and it probably is going to get worse. Do a Google News search on “inappropriate emails”, and you will be shocked at the extent and regularity of this problem.
Electronic communication can’t be beat when it comes to speed and multi-person communication, but speed on the keyboard, like on the road, can be dangerous. Be careful out there!
If you have any questions about email and social media discovery, or wish to talk about ways to protect your communications in the future, please contact us at Favaloro Law Offices.