Where You Would Least Expect to See Your Emails & Texts: In Court!

As most of us have become very adept at using email, text, and social media, our lives have sped up. It has become possible for us to instantly connect with one another, feasible to complete transactions with a swipe or a click, and easier to gain knowledge about anything — just Google it. However, along with this has come headaches for attorneys and risks for almost everyone.

In a previous article, I discussed the risks that are created by email, often resulting from people communicating things in an email, without much thought, that they perhaps would not otherwise have put in a handwritten letter or memorandum. And once that email is sent to one person, its circulation can be unlimited.  

The life of an email may not end there. People may learn that the email they were so happy to send as they rushed for a train can have a second life — in a lawsuit, where emails are discoverable, for everyone to read. Those emails can take on a life of their own and can be used against the writer. Indeed, “E-Discovery” has become the bane of litigators because of the content, and, also, because of the sheer volume of emails that go back and forth between clients and others.                       

Text messages raise all of the same risks as emails; perhaps even more, because they often evince even less thought on the part of the writer than do emails. No need to even take the time or trouble to create a new message, or even address the other party; a steady stream of conscious, often with emojis, will do. And while we may have thought out what we wanted to write in a current text, not many of us go back and review the chain of texts to the same recipient — which may go back years? Think of it as emails on steroids.

This is not to argue that emailing and texting are bad, or should be avoided. They are great and useful forms of communication and, in any event, the genie has long since left the bottle. However, it is important to remind ourselves of lessons we learned long ago — words are important, in our personal relationships and interactions and in business. And, from a legal perspective, they have meaning. This all is not less so because we have found faster and more convenient ways to convey them.

Text messages have also raised a whole new set of problems, most particularly whether or not they are admissible in court and what has to be done to authenticate them. It becomes far more difficult when you have chains of text messages and a court has to determine whether any or all of them may be admissible and how they can become authenticated.  

The law with respect to text messages is evolving and is different from state to state. The rule of thumb presently in New York is that text messages, including those in a chain, will be looked at as if they were separate messages. Yes, sometimes a chain will come in, especially if one text message is necessary to put into context a follow-up or a subsequent text message. However, this creates work for the courts and risks for the people who are putting things in text messages that they may not have intended for other people to read. 

The takeaway here is simple: Just because you no longer put pen to paper does not mean that the words you say to someone are less important; or inadmissible in a legal proceeding. Be thoughtful  of what you send in an email or text message. In fact, maybe even be more thoughtful as your original message can be forwarded and shared tenfold.

Contact me with questions or comments.

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