How many emails are in your inbox? Many of us who pride ourselves in our organizational skills and well ordered desks have hundreds of electronic messages on our systems. A company of ten or more employees could have more than 10,000 messages at any given time. This easy at-our-finger tips communication has replaced traditional correspondence with an actual ink signature. A telephone conversation is now viewed by many as an unnecessary waste of time. In the not too distant past, a simple business letter was likely dictated, typed, proofread and mailed. Two or more people may have been involved. That is clearly no longer the case. The world of instant messaging is here to stay.
Our legal system is not usually the first to embrace change, but emails are showing up more frequently in the courts. We recently relied on emails to establish important terms of a contract to support our client’s breach of contract action. Emails have also been used in New Hampshire courts to justify a wage claim against a former employer; as evidence of stalking and harassment in criminal cases; to support a claim that a former employee had violated a non competition agreement; as evidence of illegal retaliation in a whistle blower action; and to establish that an applicant for admission to the New Hampshire bar had exhibited an inability to exercise reason and good judgment.
Once litigation has started all relevant emails must be preserved. If emails have been deleted, there will be charges of spoilation of evidence, possible sanctions and the suggestion that there must have been something to hide. Because emails are so easy to copy, forward and share, they never truly disappear. Emails have legal significance. They can be legally binding contracts, admissions, and evidence. Before hitting “send,” give your emails a second look.