Turning over the e-mail

by Ted Frank on January 31, 2006

Under current civil procedure rules, parties, upon request, and with very few limits, must turn over all relevant documents to the opposing party. In the twenty-first century, that includes e-mail. Failure to turn over enough e-mail can cost a company a billion dollars in de facto sanctions (Dec. 17); turning over too much e-mail can waive the attorney-client privilege. Thus, unless parties can come to an agreement otherwise, teams of attorneys have to review every single e-mail, at great expense.

But in a typical tort action, with an individual plaintiff and one or more corporate defendants, there are asymmetric discovery burdens. An individual plaintiff has no incentive to agree with a corporate defendant to limit the corporate defendant’s burden, because (1) increasing the expense to the corporate defendant increases the likelihood of a nuisance settlement and (2) there’s no telling what stray e-mail might be able to be taken out of context to make a case to a jury unfamiliar with corporate communications that a defendant is worthy of punitive damages. (Numerous plaintiffs have successfully used decades-old back-of-the-napkin sloppy cost-benefit analyses by individual Ford and GM engineers to obtain millions of dollars of punitive damages for entirely different vehicle designs; an e-mail by Kay Anderson, a low-level Wyeth administrator who expressed frustration that her career was mired in dealing with complaints from what she called “fat people scared of a silly little lung problem” cost the company tens of millions, if not more, in fen-phen litigation when plaintiffs tarred the whole company with it.) This Wired story (via Bashman) about Enron e-mail made public provides a good reminder that any e-mail you send or receive at work is likely to end up in the hands of multiple lawyers one day.

{ 6 comments }

1 Bob Smith 01.31.06 at 12:33 am

Does this imply an obligation to save all of one’s email so it can later be used against you in discovery? I regularly delete all email once it has served its purpose, which is usually no more than a few days after receipt.

2 Ted 01.31.06 at 12:54 am

Your employer may not be deleting your e-mail, even when it disappears from your personal in-box. Large corporations frequently have court orders requiring the preservation of e-mail because of pending litigation; Sarbanes-Oxley, SEC, and FERC regulations require many other firms to archive e-mail. If you recall, Arthur Andersen was decapitated by the allegation that it encouraged compliance with a pre-existing document-destruction policy, which has also changed corporate attitudes about document destruction.

3 Deoxy 01.31.06 at 9:50 am

After merging from a small, stand-alone company into a small-but-part-of-a-stupendously-large company, I’ve heard a lot about document retention and document destruction.

Basically, there is now a significant amount of effort (costing no small sum of money, I assure you) to making sure that every document (including backup copies of every email) is kept exactly as long as required – no more, no less. If it’s required, it MUST be kept. If it’s not required, it MUST be destroyed immediately.

These kinds of legalities are the entire reason behind that. It costs the world at least tens of millions of dollars a year, probably quite a lot more. Ain’t it great?

4 Walter E. Wallis 01.31.06 at 4:11 pm

This is the same country that insists on the right of terrorists to privacy in their communications.

5 Wikstrom 01.31.06 at 4:29 pm

…this e-mail issue is, of course, merely a symptom of the failed American experiment in expansive pretrial ‘Discovery’, initiated by the Federal government in 1938.

This oppressive ‘Discovery’ process has enriched many lawyers… and harmed many an innocent citizen.

‘Discovery’ is a powerful weapon for imposing expense & hardship on an opponent. Plaintiffs and defendants with frivolous cases often use either discovery, or the threat of it, to circumvent justice.

No other country has adopted American-style ‘Discovery’ …. and America got along fine without it for most of its history.

6 Skepticseye.com by Allison Hayward 02.01.06 at 9:07 am

E-Mail as Its Own WMD

Overlawyered had a good post yesterday reminding us all of the hazards of email.
But it’s not just the message – its the attachments. Don’t email Word documents with lots of embarassing metadata. Here’s a helpful post on that po…

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