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Email Threads: The eDiscovery Key to Unlocking Truths

Posted on September 12th, 2012

As our blog frequently writes about litigants’ duty to preserve evidence, one form of electronic data is paramount: email threads and correspondence. Even in business settings, the casual nature of email adds to the candor that is frequently found within its contents. Add to this the instantaneous and real-time capture of the mind-set of the writer—and you have superior evidence that can be used to shape your case or effectively rebut witness testimony.

Email threads are some of the best forms of electronic evidence, or any evidence, and are often more telling and honest than deposition or trial testimony. For example, one only need look at a few eDiscovery cases discussed to see the consequences of destroying email in modern litigation:

  • Victor Stanley v. Creative Pipe, No. MJG-06-2662 (D.C.M.D. 2010), the court ordered civil contempt and incarceration when the defendant disobeyed orders and destroyed emails that “belie his sworn statements.” Id. at 9.
  • Motivational Living v. Doulos, 111 F. App 283 (3d Cir. 2004), where civil contempt was found against defendants for deleting email chains.
  • Residential Funding Corp. v. DeGeorgeFin, 306 F.3d 99 (2nd Dist. 2002), imposing adverse inference instruction despite finding the failure to produce emails constituted mere “ordinary negligence.”
  • Lava Trading v. Hartford Fire Ins. Co. No. 03 Civ. 7037 PKC MHD (S.D.N.Y 2005), finding it proper to reopen discovery depositions due to late email production.
  • Of course, the importance of emails was paramount throughout the entire Zubulake saga, where the court also noted that defendant employees’ email chains painted a dramatically different (and more honest) picture than their testimony at depositions.  The emails told a “compelling story of the dysfunctional atmosphere” in the workplace and contributed to evidence of plaintiff’s discrimination claim.

This is just a small sample of a large set of case law finding email spoliation in modern litigation, and illustrates how courts are willing to order sanctions and adverse inference instructions, engage in cost-shifting and reopening discovery and finding those who destroy emails in contempt of court.

Plaintiffs must be ready to combat against destruction of email from the very beginning of any case. One way that courts may protect and preserve electronic data is to order “mirror-imaging,” which will be the subject of our next blog. Call us at 888-313-4457 for more information about our plaintiff eDiscovery services.

ILS – Plaintiff Electronic Discovery Experts

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