Many people use email as a means of expressing their thoughts and feelings in writing. Sometimes it is easier to communicate through the written word than it is to speak in person. However, before you craft an email with sensitive information or type up a rage-filled email to a colleague or competitor, you should think twice before clicking “send.” All of your emails can be read not only by your firm’s information technology staffers but also by a judge and opposing counsel in a court of law.
When a company is sued and the conflict reaches court, work emails are no longer confidential. Judges may rule that private emails can be disclosed as evidence to support a legal argument. This recently happened to Uber’s chief executive, Travis Kalanick, after his company was sued for deceiving customers. The judge presiding over the Uber case decided that the emails were documents relevant to the lawsuit’s allegations, so they should be included in discovery.
Discovery is a process that occurs early in litigation where each side poses questions and asks for evidence from the other party. Attorneys can request that emails be submitted during the discovery process. It is up to the judge to determine whether such requests are legitimate. Attorneys can even ask for specific emails from a particular day and even a particular hour.
Unfortunately, litigants often ask for an excess of emails from opposing counsel. Their argument is that it is easy to upload a large quantity of emails in today’s digital age. While this might seem egregious, there are cases where judges have determined that it is appropriate for one side to produce hundreds or thousands of emails requested in the discovery process.
We’ve all assumed that our work emails are private and untouchable. At worst, maybe a bored IT worker snooped in on our conversations. Thankfully, those who’d like to keep their work email messages private are not completely powerless. If you are ever sued and the opposing counsel demands that you submit email messages during the discovery process, lean on your attorney to fight the request. You can argue that the emails are not relevant to the allegations. If the discovery request does not have a reasonable chance of uncovering information that is relevant to the case, the judge can remove it.
You can also argue that the opposition has requested too many emails. Sometimes, attorneys will request tens of thousands of emails from executives at large corporations. If the request is too broad and will not likely add substantive information to the case, a judge could decide that the messages can be kept private.
