Aceto, Bonner & Cole PC

Electronic communication now often comprises core evidence in litigation

January 28, 2017
  • Gregory J. Aceto

Most people send emails routinely and almost without thinking. They are the overwhelming means of communication for most businesses. Radicati Group, a market research firm, estimated that the average corporate employee sends and receives 105 emails per day. Accordingly, many large and mid-size businesses have email retention policies, company policies restricting email use and may conduct audits of stored emails.

Still, even with growing precautions, email evidence is routinely used in all types of litigation. From divorce cases to contract disputes, emails often shed light on the personal view of the people involved in the case - people who generally believed sent emails would remain private.

But email can be obtained by police (with probable cause), by grand jury subpoenas (which don't require probable cause) and by court order. In some cases, emails can be obtained through third parties who store the data, such as Google, Yahoo or other cloud email service which enables the storage of massive amounts of data.

In the days when most documented information was stored in filing cabinets, litigators had to know where to look to find evidence - assuming the business or individual even kept the information in the first place. With emails, advanced searching techniques allow litigators the opportunity to go through thousands upon thousands of emails, looking for specific keywords or phrases that may shed light on the case at issue.

Admissibility of electronic communication

Emails can be both a blessing and a curse for litigators. As powerful evidentiary tools emails can make or break a case. But just because they provide information that could sway a jury does not mean that they are admissible in court. Electronic communication can be manipulated or corrupted. Reliability and authentication are important considerations when searching through email, something litigators must be aware of from the beginning of the case.

Federal rules of civil procedure allow a witness with personal knowledge to authenticate emails, for example. So an attorney can confirm during a deposition by the recipient or sender of an email that the email communication is authentic. Other means of proving the authenticity and reliability of emails exist but specific rules vary by court.

Emails must also comply with other court rules, such as the hearsay rule. Hearsay is testimony by a witness who does not have personal knowledge of a fact but relates information about it told to him or her by someone else. In legal terms, hearsay is a statement made "out-of-court," offered in evidence to "prove the truth of the matter asserted." Such testimony is usually inadmissible in court. Emails that are hearsay are inadmissible as evidence unless they meet a hearsay exception under the law.

Discovery plays an important role in any case

Discovery is the legal term for the fact-finding part of a case, when each side will request documents, conduct depositions, and otherwise research the underlying facts that led to litigation. Electronic communications have become integral to discovery in many cases. People concerned about emails or other electronic communication in a court case should seek the counsel of an experienced litigator to discuss any issues.

News and Articles