Email stands for evidence mail. Here's a legal guide to how email and text can haunt you or protect you.
GettyDenis Kleinfeld, a Miami lawyer and law professor, coined the term “evidence mail” to emphasize that emails can, and often will, reveal problematic messages and communications in litigation.
E-mail can be submitted as evidence in court the same way one would admit any other form of evidence. To admit anything under the Federal Rules of Evidence, the piece of evidence must be relevant, meaning that it has a tendency to make a fact at issue more or less probable than it would be without the evidence.
There are several exceptions to hearsay, one such exception is the business records exception. Work e-mails often fall under the business records exception of hearsay. A business record exception applies when the piece of evidence is kept in the course of regularly conducted business activity. Sending an e-mail from work does not automatically make the evidence admissible under a business record exception of hearsay, but it could be admissible if the contents are within the scope of employment.
The good news is that lawyers and CPAs are covered under the attorney/client privilege, as are experts who are retained under a “Kovel” confidentiality letter or agreement. Even arm’s-length parties engaged in a transaction or negotiations may enter into a joint defense agreement to enable their communications through lawyers and other professionals to remain confidential under the attorney/client privilege.
On the other hand, how can you appropriately use the team approach and make sure everyone is on the same page if you are not able to write a letter or email confirming what has been discussed in meetings or otherwise? Luckily, original e-mail messages can be recovered using commercial software long after the user sent, read, or deleted the message.
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