Emails Continue to Provide a Rich Source of Relevant Electronic Evidence

Not notifying authorities “is a more humane” way to handle the incident – email authored by key player in the Penn State Scandal[1]

The Background

Over a decade ago, in the relatively early days of electronic discovery, my pioneering computer forensics colleagues and I were discussing how the explosion of email usage would forever change the litigation landscape as attorneys increased their reliance on emails as a significant source of Electronically Stored Information (ESI) in high-stakes litigation.  In many respects, this became true.  To be sure, a number of notable law suits were decided in large part as the result of those pesky “smoking gun” emails that were discovered by attorneys and their eDiscovery experts during litigation.  And my team and I certainly recovered our share of these case-deciding emails for hundreds of our clients in many of the cases we handled over the years.  This was the “Wild Wild West” of the early eDiscovery days.

Many of us agreed, however, that the value of email during discovery might diminish as a source of ESI as email users would inevitably become more thoughtful about their email communications.  Once everyone began to understand that “deleted” was really not “deleted” the quantity of truly “hot”  emails recovered during eDiscovery would certainly diminish.  We were wrong.

The now famous email (quoted above) recently recovered during the Penn State sexual abuse scandal is a glaring case in point.  We now know that a senior Penn State executive who became aware of the abuse atrocities emailed one of his colleagues indicating that it would be better….(ie, “more humane” to use his own words)  to NOT report the sexual abuse allegations to authorities when it became quite clear what was going on.  The result?  Years of continued abuse of innocent young boys.  Yes, email discovery and computer forensics has played a key role in bringing to light the horrific deeds of a few really bad people.

Why bring this up now?

It is a reminder that emails continue to be an extremely powerful source of evidence in investigations and litigation today.  In nearly every case we see….

  • Internal corporate investigations
  • Securities investigations
  • “Whistleblower” cases
  • Foreign Corrupt Practices Act (FCPA) investigations
  • Creditor’s rights matters
  • Trade Secret litigation
  • Employment cases

The Take-Aways

At the risk of stating the obvious, remember that email can be a powerful source of electronic evidence that is often not available anywhere else.  Otherwise smart people continue to do dumb things with computers….including speaking about their misdeeds in an ofter very casual and sloppy fashion.  So…

  1.  Go for it.  Don’t forget to seek email during your discovery requests, and advise your clients to preserve it (avoiding spoliation) once litigation is imminent or likely.  If your matter is in the investigative stages, preserve the subject’s email accounts and have their email forensically preserved in an evidentiary manner.
  2. Don’t Forget Web Mail.  Sometimes ill-intending individuals will send and receive incriminating emails via their web mail accounts (Gmail, etc…), while at work, intending to by-pass the scrutiny of corporate on-lookers.  These emails can often be recovered, even when deleted.
  3. iPhones are golden.  It’s not just about computers.  iPhones, iPads, and other portable devices are increasingly used for email and text communications.  Cast your net wide enough to include them during investigations and litigation.
  4. The need for speed.  Electronic messages can be fleeting.  If you believe that emails or text messages are important to your case, go after them with urgency.  Otherwise, users may go to great lengths to make them go away.

[1] “Focus on Penn State Turns to Emails”.  Wall Street Journal. By John W.Miller.  July 2, 2012