{2:45 minutes to read}
Much has changed in the way we live and communicate. For many people, both in business and personally, that means emails and text messages have replaced carefully thought-out letters and memoranda.
In business today, it is commonplace for individuals to send numerous emails or texts during the course of the day, rather than one comprehensive, well thought-out and well written memorandum or letter – even one transmitted by email. Far too often, people have developed a habit of putting something in a text or an email message – often times, a “stream of consciousness” rambling – without taking the time to review it carefully or making sure that it is entirely accurate – and without thinking of how it might be misconstrued.
Welcome to your litigation counsel’s greatest nightmare!
When a dispute winds up in litigation, all documents that may be relevant to the claims (the scope of discovery under the Federal Rules of Civil Procedure), or material and necessary in the prosecution or defense of the action (the scope under New York law), must be provided to the other parties. That means that, in addition to carefully constructed letters, memoranda and transactional documents, all emails and text messages, including internal communications, which often contain ill-conceived musings of an individual, must be produced. In fact, there are adverse consequences to destroying documents after one becomes aware of the possibility of a legal dispute about which they may be relevant. Because of the volume of electronic communication and data, “e-discovery” is time consuming for the clients and their attorneys, and often costly for the clients.
Moreover, often times, a witness’ credibility – or an entire case – can be compromised or destroyed by cross-examination of witnesses based on such ill-conceived and loosely worded statements that appear in emails and text messages. Therefore, one should think very clearly before hitting “send.” While the reality is that this advice may be simple to state but much more difficult to practice, one should be aware that you will have to live with, and may have to share, the message you send off into the cloud when it returns to earth.
If you have questions or comments, please contact us.
