"Email is Death" -- Email and Social Media in 21st Century Business Litigation

In the past fifteen years the internet and emails are increasingly taking center stage as one of the main forms of evidence in business litigation trials. Many or most business litigation attorneys will agree that in trial "the written word" carries extraordinary weight with both judges and juries. When testifying at trial, it is natural that people will try to put their spin on what they may have verbally said about the critical issues of the business dispute. Accounts by witnesses about things that were said often conflict. But all too often emails between the parties seem to eliminate all doubt as to what was actually communicated. Since trials are supposed to be a means to determine the truth, this can be a good thing.

But not always. There is something about emails that seems to encourage intemperate exchanges; often the type of exchange that the sender later regrets. All of us know people who are perfectly pleasant to deal with in person or on the telephone who show a completely different, and nastier, personality when communicating by email. Often "email chains" between the parties can put one party in a very bad light when they show up in court. And they always do show up in court because emails are essentially eternal—someone, somewhere, always seems to have a copy. One of the first steps in modern business litigation is for the attorneys to try to round up all of the emails between the various parties, usually going back years. Attorneys will carefully scrutinize these emails for use as evidence. Needless to say, it is a rare case where some of these emails do not end up looking absolutely dreadful in court. Intemperate or careless emails can seriously undermine a case.

Increasingly, Facebook and other social media posts by litigants are also turning up as evidence in court. California recently passed a law prohibiting employers from requiring employees to give access to their social media. However, many litigants do so voluntarily by "friending" co-workers on Facebook, for example. In a recent employment dispute trial, Buffington Law Firm used the other side's Facebook posts as effective evidence. Experienced business litigation attorneys know that emails can be tremendously persuasive evidence.

Unfortunately, litigation attorneys are often brought into a business dispute, such as a breach of contract case or an employment dispute, only after the parties have sent large numbers of emails. Preventing emails and other forms of internet use from undermining one's case is, of necessity, something that businesses must do as a matter of daily practice. Some suggestions:

  1. Try to remember that all email is potential evidence. Assume that every email that you send can turn up in business litigation (they can). Will this not often change the way you write emails?
  2. If an employee or corporate officer has a habit of sending intemperate, questionable emails, talk to him or her and nip the problem in the bud. This is sometimes not easily done, but it is important.
  3. Try to control what company employees say about company business in social media. There is nothing that prevents companies from politely asking its employees not to post matters related to company business on Facebook and the like. Most employees will likely comply.

Email is convenient and efficient. It also can be absolute poison in litigation. Use it with care.