How E-Mail Is Revolutionizing Litigation

• Posted by Geoffrey G. Gussis on August 1st, 2005


• Filed in Litigation

The Corporate Counsel has an interesting piece by Michael G. Trachtman of Powell, Trachtman, Logan, Carrle & Lombardo, P.C. on how email is revolutionizing litigation - and changing the way that companies do business:

"The good news is that an e-mail that accurately corroborates your
version of the facts can be of supreme, strategic importance. The bad
news is that most people do not anticipate that their e-mails may end
up as an exhibit in a courtroom, where each page will be projected on a
large screen and parsed for meaning and intent. Often as a result,
little care is taken in wording e-mails, leaving the author with an
unconvincing — and potentially devastating — "I know that’s what I
said but that’s not what I meant" explanation. E-mail authors often
find themselves in the position of having unintentionally documented
the other side’s case.

For instance, in the U.S. versus Microsoft antitrust
proceeding, a key contention was that Microsoft was conspiring against
Sun Microsystems. An internal Bill Gates e-mail surfaced in which he
asks: "Do we have a clear plan on what we want Apple to do to undermine
Sun?" A Microsoft executive e-mailed Gates with a strategy to force
Apple to do Microsoft’s bidding by threatening that, otherwise,
Microsoft "will do a great deal of harm to Apple immediately." There
were, of course, excuses and explanations, but the damage to
Microsoft’s defense in the case had been done.

Just as dangerous, there is a strange, psychological aspect
to e-mail: Business people seem to
believe that they have to be much more careful about what they say in a
printed memo or a letter than they do in an e-mail. It is as if they
view hard-copy documents as having a permanent existence, while viewing
e-mails as if they exist only in some evanescent form, like notes
written in disappearing ink. Indeed, the opposite is true.

In addition to the obvious fact that e-mails can easily be
printed and filed, specific e-mails are much easier than memos or
letters to find. And the ease with which e-mails can be forwarded to a
geometrically increasing array of recipients increases the odds of an
e-mail being where an investigator might be looking.
 
 
Executives at the highest levels seem beset by this "it’s just
an e-mail, I can say whatever I want" malady. As has been well
publicized, former Boeing CEO Harry Stonecipher recently sent "love
letter" e-mails to a female executive through the Boeing e-mail system,
which were ultimately forwarded to the board, resulting in his
dismissal.
 
It is hard to imagine him deciding to risk expressing the same
sentiments in a memo. Enron executives sent copious, incriminatory
e-mails referring to meetings that Enron executives later claimed they
never had; meetings in which plans to exercise political influence were
discussed, and ruminating on how to derail pending and expected
investigations — blithely but inexplicably presuming that the e-mails
would never be discovered and publicized.
 
 
The extent to which major, commercial proceedings are
routinely turned one way or another based on e-mails that are either
poorly phrased, or never should have been sent in the first place, can
be startling."

Read the entire article for more tips.  Link: How E-Mail Is Revolutionizing Litigation — and What You Should Be Doing About It.