Litigation: E-mails, Texts, and Tweets: Killer Evidence

Time and again, in jury research and in juror interviews following verdicts, contemporaneous writings by persons with the closest relationship to the litigated dispute—those who negotiated or implemented the contract, who made the employment termination decision, who engaged in price negotiations, and the like—receive dispositive weight. Internal memos, e-mails, text messages and even postings on social media have overridden percipient testimony no matter how credible.

For a defendant, these types of documents can be the most dangerous. This difficult lesson must be taken seriously..Managers and employees need to understand that their casual communications take on an entirely different appearance when they are written and preserved and then viewed years later, possibly out of context. Indeed, e-mails that reflect intent trump, in jurors’ minds, the actual wording of contracts or the testimony of management who have made important decisions for the company. In addition, e-mails tend to be forwarded to unintended recipients and are unlikely to be deleted from all of the places that they end up. They are almost invariably viewed by outsiders, including jurors, as a true glimpse into the inner thoughts of the sender. From a corporate perspective, e-mails are best used only to convey objective information without judgmental or colorful additions. So what can be done?

First, company employees should be counseled on basic e-mail hygiene: Each e-mail sent within a corporate environment (in a nonprivileged context) should be written with the content and tone in mind that the employee would not mind showing the e-mail to any third party—in other words, assume publication.

Second, once critical e-mails are discovered in litigation, they should be reviewed and put into context. Employees being deposed about their e-mails must be prepared to explain in their deposition the context in which the e-mail was sent and to credibly and truthfully explain in the deposition what was truly intended. Although sometimes considered a risky strategy, to the extent that counsel is confronted with the situation where an employee author of an e-mail is asked in a deposition simply to authenticate the e-mail document, counsel must carefully consider whether to take that employee on essentially direct examination in the deposition and offer the employee the opportunity to explain it. If necessary, that prophylactic tactic could preserve a case on summary judgment and inoculate the e-mail from harmful use at a later trial.

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Source: Inside Counsel
By: David Zaslowski