by Shirley B. Whitenack

As the use of e-mail for communications in business proliferates, so does the use of e-mail as a "smoking gun" in litigation. E-mail messages that companies and their employees thought were private, or were deleted and untraceable, are reappearing in court as the centerpiece of evidence in almost every kind of lawsuit.

During the discovery phase of a lawsuit, sophisticated lawyers will request copies of the opposing party's e-mails, diskettes and back-up tapes. Routine software programs can resurrect deleted files in minutes. Many e-mail systems even create logs so that it is possible to discover when the deletion occurred. Moreover, attempts to avoid discovery by purging electronic media of sensitive files may subject the company to a wide range of litigation sanctions.

A business contemplating or defending a lawsuit should consider retaining litigation counsel experienced with discovery of, and evidentiary rules regarding, electronic data. Counsel should know, for example, that often it is important not only to request the text of the e-mail but also the date and time stamps showing transmission and receipt, and the list of recipients of the e-mail.

Sophisticated counsel can also advise you as to the desirability of establishing a consistent, uniformly enforced e-mail retention policy. Deletion of e-mails pursuant to such a policy, and before a discovery request could reasonably have been anticipated, is generally considered to be acceptable and may leave less of a paper trail, particularly against less sophisticated opposing counsel.

The advent of e-mail has changed litigation just as it has changed business. In both settings, understanding its uses can be a key to success.