Seasoned trial lawyers know the scenario well. A senior executive returns from her deposition, where opposing counsel grilled her on a barrage of internal emails that came from every corner of the company. The emails were sarcastic and snide in tone, full of baseless opinions, and disparaging to the company, its personnel and its policies. The emails should be a sideshow to the substantive claims at issue, but her lawyers know they will be front and center at trial. How can companies and their attorneys prevent this litigation pitfall?
The issue is unlikely to go away. If anything, as email continues to proliferate in Americans’ professional and personal lives, its role and importance in litigation will continue to grow. Each person generates an annual volume of electronic documents the equivalent to 75,000 pages, according to the August 2010 edition of EDDE Journal, the American Bar Association’s ediscovery publication. The growing mountain of electronic data means an increasing risk for smoking-gun evidence, which can gut claims and key defenses.
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