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.
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