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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 - PowerPoint PPT Presentation
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e-nuff! : Practical Tips For Keeping Emails From
Derailing Your Case
Presented by
Jerry L. Mitchell
kasowitz benson torres & friedman llp
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
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kasowitz benson torres & friedman llp
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
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kasowitz benson torres & friedman llp
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
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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
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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
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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
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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”
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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
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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
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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
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Failure To Preserve – Spoliation(con’t)
• Consequences:
– Jury instruction• Adverse inference• Presumption
– Monetary Sanctions– Exclusion of evidence, claims or defenses– Death Penalty Sanctions
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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
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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!
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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
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