A post on Dan James’ CEO Blues got me thinking – is it the law to save your emails?
The answer is yes, if you get sued.
It is a requirement of civil law to retain all documents including electronic docs like email. A Canadian authority on this, with some US links, is Alan Gahtan. He has an interesting blog and encyclopedia of cyberlaw. Makes good reading on long winter nights. Gahtan also has a book published by Carswell called “Electronic Evidence” which makes scintillating reading anytime.
If someone sues you or vice versa, you can be compelled during the discovery part of the proceedings to produce all documents (old news) including e-docs (recent news). All means ALL.
This is supposed to show both sides the evidence they will have to address in court and should result in the case being settled early. Courts like us to settle before we get inside the doors of the courthouse so they can watch Judge Judy.
Everyone is used to the drill – get the notice of a suit, start the shredder :). I believe the obligation begins when notice of the suit is served while the actual request can take years. Most lawyers still don’t have a clue about electronic evidence and yours may not tell you until well into the process, like when he/she gets served with the request.
Both sides discover things that can be the golden key during this process through accident, guile and sleuthing. In one case a pivotal letter to A delivered by email was purportedly signed by B. It became the smoking gun. It was written for no apparent reason by a third party C who wanted to induce the B to cancel a contract with A. B and C were not computer smart and never thought their littl scheme would see the light of day.
That plot had been suggested but there was no proof until the digital author time stamp indicated C was interfering in a contract between A and B. This allowed the lawyer for A to join C in the lawsuit as a conspirator to induce breach of contract.
The author was discovered just browsing the CD with their e-docs. The case was settled soon after that nasty piece of business came to light.
E-doc requests have another value – leverage. If one side of a lawsuit is careless with e-docs they will either a) not be able to find them b) have to spend upwards of $250,000 to produce them. Tech savvy clients can produce them on a dime – mail server backups with rules that every email is stored on the server forever.
The request for e-docs can send the other side in a tizzy. They will deny: they have any, they have to file them, etc. until they accept the inevitable. At that point they data may be on a computer that died, was sold, taken home – the cost to collect in a medium sized case is about $250,000. Production of documents is usually not a cost assessable against your legal opponent so each side bears the cost.
That one issue alone can bring a settlement, settle now and save a hard expenditure of $100,000 and up.
The other point goes to cost or having your case thrown out. If you cannot produce a reasonably complete set of e-docs, you likely will be sanctioned by the judge, maybe not get costs even if you win. Looks bad to judges like you’re trying to hide something. Gahtan has one instance where a case was thrown out when the plaintiff, ex something or other, entered the defendant’s computer system, took the docs he wanted and put them with his on a CD.
“A lawsuit was dismissed by an Ontario judge after the plaintiff hacked into the defendant’s computer server while legal proceedings were taking place.”
“According to David E. Fine, lawyer for the defendant with Gardiner Roberts LLP in Toronto, as cited in the article, (We) couldn’t really find any precedent, so this may be the first case of its kind, where the judge has said you can’t go ahead because of your conduct. The incident was discovered when the plaintiff submitted a DVD – with the materials hacked from the defendant’s server – as evidence in the lawsuit. ” blog e discovery
So saving emails is the law.
The computer biz is like any other, in the early stages law develops case by case. You can get your comeuppance really fast when issues hit. The “superior knowledge” concept, from the ethics discussion, was from Manitoba and US cases.
We had done a project (circa 1988) and it was slower than expected. Wow who would think that could happen? The client was terrible at changing his mind. Boom, one day I got a lawyers letter demand all money back plus damages.
My lawyer convinced me to settle quickly. IT companies rarely win on development or other technical lawsuits since they are assumed by judges to have the upper hand. We are supposed to know more than the client (and we do). It puts the onus on us to know what could, would and should happen. Oops there’s one they didn’t teach in contact law.
It’s like the 49 Gold Rush in IT – people are suing over anything and everything because there’s money in it.
Legal notice – I’m not a lawyer nor am I dispensing legal advice, just telling the tale as I know it.
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