Business Litigation is a document intensive practice. More often that not, a dispute as to what happened in a particular case is determined by reviewing the parties’ contemporaneous documents. When I began to practice law, documents consisted primarily of letters, memoranda, financial records, and other documents of a formal character. This is no longer the case. Electronic documents are now the predominant type of record used to explain the parties’ pre-litigation intentions and conduct. Emails, text messages, social media posts, and other casual forms of expression are all commonly used in litigation. For this reason, you should assume that your emails may one day be discoverable in a business litigation. With that in mind, here are a few recommendations:
1. Mind your P’s and Q’s. Business emails are not a vehicle to vent, editorialize, ridicule, or insult your colleagues, co-workers, or competition. Remember that your email may one day be read by someone who is not on your intended recipient list.
2. Keep business and personal emails separate. The best way to keep your personal emails from being dragged into a business litigation is to use a personal email address for personal communications.
3. Archive everything. I understand that you want your inbox to be manageable. Who doesn’t? But make sure that messages deleted from your inbox are archived to a secure location that can be retrieved in the event of litigation. The deletion of potentially relevant evidence can adversely affect you in litigation.