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When Your Words Come Back to Haunt You: Emails as Evidence

Emails have become a ubiquitous part of the modern business landscape. They, along with texting and instant messaging, have created a massive textual record of conversations between colleagues that used to happen over the phone or in person, never to be written down. Of course, as with many new technologies, the convenience comes with its downsides. Whose heart has not skipped a beat as they wonder whether they accidentally clicked reply all on an email? Yet, there is another, less commonly thought about danger to emails, that they may end up becoming evidence against a company in a business lawsuit.

The Problem of Email Evidence

All too often, employees and business owners get into the habit of thinking that their email conversations are private, and they say things they might otherwise not commit to writing. They think that as long as they delete the emails, they are safe. However, deleting an email from an inbox is not enough to wipe it out. Without special software, someone properly skilled in forensics can often recover deleted emails. This can lead to employee’s misjudgements, miscommunications, and disrespectful statements being introduced in court.

Of course, the law does not allow any email into evidence without inspection. The court has safeguards in place to ensure that the emails are properly authenticated, and that they are not being improperly used to import testimony that should be coming from witnesses under the Federal Rules of Evidence. While these safeguards do prevent some emails from being used as evidence, they are not overly-high bars to clear, meaning that businesses need to be aware of the fact that their emails can easily come back to haunt them.

Proactive Steps

Businesses should take proactive steps to ensure that employees and managers do not end up sending an email that they will later come to regret. Beyond simply being conscious of the fact that emails can easily become public documents, there are a variety of specific things that companies can do to help protect themselves. One thing employees should remember when sending email is that tone does not transfer onto the page. What may be intended as a joke or sarcasm will sound quite serious when it is being read to the jury in open court. That, along with other things like unprofessional language, can make the company look bad to the jury, even if it lacks any actual legal force.

Another important thing to keep in mind is that non-lawyers should avoid putting their own interpretations of the law in writing. This is particularly a problem for higher-level management, who often attempt to navigate the law on their own. Making an offhand comment about becoming a monopoly in an email is the sort of thing that can cause problems in a future antitrust lawsuit.

Business litigation often involves complex sets of facts and difficult evidentiary issues. If you are currently involved in a business dispute, and you would like to learn more about your options, contact a West Palm Beach business law attorney at Pike & Lustig, LLP today for more information about your rights.

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