Category Archives: eMail

e-Mail – Death, Taxes & Send

Time FliesWhat do these three things have in common?  They’re inevitable.

The ABA Journal published an article about things you should never put in an e-mail.  As usual, the article spawned a lot of interesting comments and I was more fascinated with a couple of them than with the story itself.

First, many people couldn’t understand how a rational person – who would never write the same thing in an actual letter – would do so in an e-mail.  Second, a few lambasted the authors for providing a method to “evade the law”.  Third, and I admit I’ve used this example, it was suggested that one should never send an e-mail that they wouldn’t want their mother to see.  Based on some of the expletive-laced e-mails I’ve received in my career, I sure wish the senders had run them by their mothers…

There’s a reason we have anti-theft devices for our homes and cars.  They’re preventative measures.  Not only are they a hindrance, but in some instances, they give people time to think about what they’re doing.

If we really want to address where the process breaks down, there’s only one place to look; time.  Time to reflect.  Time to calm down.  Time to reason.  In the olden days, someone had to take care to craft a letter.  They had to address the envelope.  They had to put a stamp on it.  Then, they probably had to walk or drive somewhere to put it into a mailbox.  Now, all we have to do is type our stream of consciousness as quickly as we can – limited only by how many wpm we can produce – then press SEND.

I type 70wpm.  If only someone would invent the anti-send device…

j0405010 We’re victims of ease and efficiency.  Here’s my scientific view.  The easier something is – and by default, the more efficient it is – is directly proportional to our ability to screw it up!  We’re under so much time pressure and it’s so easy to use, do we really need to proof-read or check for content?  Nah, just send it now and worry about following-up later.

I also take issue with the attitude that giving someone essentially what amounts to an e-mail ‘Dos & Don’ts’ list is somehow equivalent to assisting in the commission of dishonest or illegal acts.  That’s quite a leap.

Whenever a discussion takes place, some may use the information gleaned from it for nefarious purposes.  Does that end the debate?  Teaching a class how to properly use a gun doesn’t automatically make them murderers (although, if you had reason to know that one of them might become one, that’s a different story).

There are many legitimate, legal and appropriate reasons to include details in e-mails and conversely, to leave them out.  For example, if you were seeking advice from your attorney, privilege would attach.  What difference should it make if it’s a face-to-face conversation or by email?

Unfortunately, it does make a difference.

It’s fine that you addressed confidential information to exactly the
right person.  The problem is that email can be intercepted and/or forwarded, with dire consequences.

Companies have e-mail policies for this very reason.  People will always put stupid, embarrassing or inappropriate things in messages; we don’t need to address that here.  The open question is, when does an e-mail cross the threshold from being simply inappropriate to becoming actionable.

A little more thought before you hit the send button may help you avoid a different threshold; the threshold of pain.

What is Electronic Evidence? Answer: A lot more than you might Think!

Part I of a two-part series.  Part II will appear 12/04/08.


A cardinal rule, known to law students everywhere, was broken.  “When on a break from the bar exam, don’t discuss a specific part of it with anyone – and if you absolutely must, ask permission first!”  The reasoning behind this rule; to prevent students from freaking out because inevitably the other student will point out something they themselves missed, thus setting off a chain reaction of worry, panic and distraction.

There I was, on a break from the California Bar Exam, and another student really wanted to discuss the evidence question with me.  We had a pleasant conversation – as pleasant as it could be between two stressed-out bar candidates in the middle of a three-day exam.  We discussed the facts as they pertained to the question and the issue of whether each piece of evidence put before us was authentic.


All was going well until I pointed out the ones that were legit, but weren’t admissible in court.  The pallor of my counterpart changed noticeably.  That’s when he realized that he’d done a great job analyzing whether each piece of evidence was authentic, but forgot the next step – determining whether each was admissible.

Finding evidence is just the beginning.  If all of your dominoes don’t line up properly, it will never be admitted.  The technology gurus have a huge role to play and may not even be aware of it.

A few years ago, if you explained to the average person what electronic evidence – or e-evidence was, then asked them to give you an example, 99% of them would have given you the same answer – e-mail.  We’ve all read news stories about this individual or that one who was caught red-handed through his or her e-mail messages.

Later, another example started showing up more often – text messages.  Just ask the former Mayor of Detroit how that turned out for him…


In law school and on the bar exam, the testers took pride in finding ways to slip a piece of written evidence right by a student by putting it into a form that he or she wouldn’t normally think of as “written”; engraving on a tombstone, label on a medicine bottle, a license plate.  We’re conditioned to think of written evidence as something more mainstream, like a letter, a book or a bill of receipt.

A lot of e-evidence is still written – but now it’s written to computer hard drives, DVDs and cellular phones.  Just like law school students, we have to broaden our thinking and remember that virtually any device that can save, store – or even process electronic information (e.g. RAM in printers/fax machines) may qualify. Then, we have to remember the really tough part – many of these devices are mobile.  They could be virtually anywhere in the world.

Let’s take a hypothetical look at Jane Doe.  She works for a multi-national corporation, “Multi-Corp”.  She has an office in Los Angeles and one in Tokyo, and an apartment in each city as well.  She has a desktop computer in each office, plus a laptop to use when she’s out in the field, at home or traveling.  She stores some of her work on the company file servers.  She’s taken to transferring work from her laptop to her home computers in both Tokyo and L.A. – because she likes them better (the boss doesn’t know).  It’s annoying for her to connect the machines directly, so she either hooks up wirelessly through her router or uses her thumb drive.  She has two cellular phones (one is personal) and a PDA.

Multi-Corp is sued by Uni-Corp, and the Plaintiffs subpoena Jane’s correspondences.  Am I the only one with a headache?  Probably not.

If I’m in the IT department at Multi-Corp, I have to think of every possible device – and the location of each – where relevant data may be stored (let’s hope Jane remembers to tell me about the thumb drive).  Then, once I do, I have to locate the data on the device itself.  What if I need to retrieve it from back-up media?  What happens if a device – and the data it contains – is owned/managed/outsourced to a third party (e.g. the file servers or the cellular phones)?  How do I get them to grant me access when they don’t want to be dragged into a lawsuit?  Do they have to do so?  I might have to ask the legal department.

If I’m in the Legal department at Multi-Corp – or in their outside counsel’s office – I’m depending on the expertise of my IT resources, but I’m also worried about issues that IT doesn’t normally think about; chain-of-custody being a prime example.  I’m looking for data that will exonerate the defendant and relevance is only one issue.  I’m also responsible for making sure it’s admissible and I don’t want it thrown out on a technicality.  How can I impress this and other concepts upon people who don’t work directly for me?

Meanwhile, both departments – and management – are thinking about the costs and whether the Plaintiff’s subpoena is too broad in its scope.

A lot of questions.  A lot of concerns.  I will endeavor to address all of them in tomorrow’s post.

Back to the Future – Reebok v. Tristar, 1996 (the “Jerry Maguire” case)

*** NOTE – No privileged or proprietary information is contained in this post. ***

Movie Reel

My first foray into the realm of e-discovery occurred in early 1997 – when it was still just called “discovery”.  I was a Consultant to Sony Pictures Entertainment at the time and Manager of Groupware Services Worldwide, which – unfortunately for me – included responsibility for the company email system.  I was not yet an attorney.

(I have a feeling most of you know where this is going…).

In late, 1996, Reebok Int’l filed suit against Tristar Pictures (at the time a subdivision of SPE) for breach of contract due to the handling of a product placement in the movie, “Jerry Maguire“.  Reebok’s attorneys issued a subpoena for relevant email correspondence between Tristar representatives who were parties to the negotiations.

We faced a serious problem, which was not an unusual one given the time elapsed between negotiations to make a motion picture and the actual production and release of that picture.  The emails were several years old and the Company had done away with the archaic tape backup system used at the time.

A consultant’s job is to find a reasonable method to deliver what a client requests.  As such, I tasked one of our best number-crunchers to figure out what it would realistically take to re-create the prior backup system from scratch, then catalog all of the old tapes to
even give us a starting point as to what would be required for review and production.  Keep in mind that this was a much more difficult feat to accomplish in 1997 than it is today.  The results were striking.  The estimated cost to comply with the subpoena was approximately $250,000!Movie Reel and Film

Obviously, management wasn’t too keen on the idea of spending that sum of money, and thus began a motion by Tristar’s representatives to quash the subpoena due to the high cost, or failing that, shift the burden – or at least a large portion of it – onto the Plaintiff.  Being on the tech side of things – and with a stack of responsibilities on my desk – I moved on to the next “crisis” and have no knowledge as to what specifically transpired after that.  Eventually, the word came down from on high; “you don’t have to worry about producing the data”.  Whew!

I wanted to relay this story because it mirrors exactly how an e-discovery request might fall upon an IT department today.  It also raises several of the most important issues:

Are we able to comply with the request?  How much time/resources will this take away from our other pressing issues?  How much will this cost?  Who will bear the cost?

Luckily, I had at my disposal the qualified brainpower to comply – and had we been asked to proceed, we could have done so.  But it would also have meant taking one of my best minds away from what he was doing, leaving me short-handed with the prospect of making do without him or hiring a temporary replacement and bringing him/her “up to speed”.

The question is, what would happen if you received the request?