1 / 16

e -nuff! : Practical Tips For Keeping Emails From Derailing Your Case

e -nuff! : Practical Tips For Keeping Emails From Derailing Your Case. Presented by Jerry L. Mitchell. INTRODUCTION. Email has become one of the most important forms of communication in the business world

dezso
Download Presentation

e -nuff! : Practical Tips For Keeping Emails From Derailing Your Case

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. e-nuff! : Practical Tips For Keeping Emails From Derailing Your Case Presented by Jerry L. Mitchell

  2. INTRODUCTION • Email has become one of the most important forms of communication in the business world • One recent study estimated that there are approximately 850 million business email accounts in the world • Last year an average of 89 billion business emails were sent each day • Fighting over retention, destruction and production of emails has become a major and expensive issue in litigation WWW.KASOWITZ.COM

  3. Email Is Dangerous • Ineffective form of Communication • Per Dr. Albert Mehrabian of UCLA, Communication is: • Tone 38% • Visual 55% • Words 7% • OK for facts or data • Doesn’t work for opinions, feelings, sensitive issues WWW.KASOWITZ.COM

  4. Email is Dangerous (con’t) • People will say things in an email they would never say in person or in a letter • Creates exhibits you will see again at your deposition • Lawsuits can be won and lost, and even powerful politicians brought down, by the content of, or the failure to preserve, emails WWW.KASOWITZ.COM

  5. Have A Written Email Policy • Notice that computer and email system are company property and that company monitors email • Content restrictions • Treatment of confidential information • Back-up tapes • Archival • Disaster recovery WWW.KASOWITZ.COM

  6. Have A Written Email Policy (Con’t) • Retention/Destruction • Balance business needs vs. litigation risks • Specific retention requirements may apply • Preservation obligations in litigation • Enforcement WWW.KASOWITZ.COM

  7. Train Your Email Users • Cover policies • Obtain acknowledgement • Limitations of email • Etiquette • Proof read/spell check • Don’t use text-style abbreviations • Check attachments twice • Traps • Auto-fill/Auto-correct • Reply all WWW.KASOWITZ.COM

  8. Train Your Email Users (con’t) • Traps (con’t) • “Recall” What the recall email says: “John Jones would like to Recall this message” What the recipients actually see: “Stop whatever you are doing and read the last email from John Jones word by word to find out where he screwed up” WWW.KASOWITZ.COM

  9. Preservation Obligations In Litigation • Major issue in litigation today • Issue a litigation hold when you reasonably anticipate litigation • What is “reasonable anticipation of litigation”? • May trigger limitations • “Work Product” privilege claim may trigger duty • Put it in writing to anyone involved in the transaction at issue WWW.KASOWITZ.COM

  10. After Litigation Hold In Place • Halt auto-deletion of emails • Monitor compliance with litigation hold • Be informed of potential sources of electronic data • If necessary, take possession of sources of data • Keep data in its native format • Document your preservation efforts • Consider issuing a request to opposing party to preserve relevant data WWW.KASOWITZ.COM

  11. Failure To Preserve - Spoliation • Elements: • Whether party has a duty to preserve the evidence • Whether that party negligently or intentionally spoliated evidence; and • Whether the spoliation prejudiced other party’s ability to prosecute or defend the case WWW.KASOWITZ.COM

  12. Failure To Preserve – Spoliation(con’t) • Consequences: • Jury instruction • Adverse inference • Presumption • Monetary Sanctions • Exclusion of evidence, claims or defenses • Death Penalty Sanctions WWW.KASOWITZ.COM

  13. Lawyers Are Not Immune • Not all communications are privileged • Emails can be produced in certain types of cases, such as legal malpractice • Consider purging red-line notes and draft versions of documents (not subject to litigation holds) • Limit email communication with experts WWW.KASOWITZ.COM

  14. Related Electronic Discovery Issues • Personal devices/email addresses • Must include them in your litigation hold if used for business purposes • Sanctions have been imposed for failure to preserve when relevant and responsive • Can ISPS be subpoenaed to obtain personal emails? • Instant messaging • Address these in your written policy! WWW.KASOWITZ.COM

  15. Conclusion • Q & A Session • Send me your doozy emails Jerry L. Mitchell, Partner Kasowitz, Benson, Torres & Friedman LLP 700 Louisiana, Suite 2200 Houston, Texas 77002 713-220-8800 jmitchell@kasowitz.com WWW.KASOWITZ.COM

More Related