I don't remember exactly when "e-discovery" became popular, but I've never agreed with "Every e-mail you write could wind up in court. Everybody knows this, but people still act like it will never happen to them."
email is fake. It can be faked. It can be forged. It isn't a legal record, but people treat it that way.
I still wouldn't like to be in front of a judge explaining myself. Just because an e-mail somewhere, somehow, could be forged, doesn't make the whole medium inadmissible in court.
> It isn't a legal record, but people treat it that way
No they don't.
It's evidence and is treated as such, including all the proper oversight regarding chain of custody and regulatory capture/compliance. All evidence can be faked or forged, like testimony, physical evidence, or even legal "records" (what is that supposed to even mean, anyway? Did you know contracts are also evidence? And that they can be forged?)
That's why we have judges, juries and all sorts of messy legal constructs like "truth" and "perjury" and "oath".
None of this stuff is deterministic in the real world and it's a lot more complicated than some guy with a beard producing e-mails from a server in the closet.
You may not agree with it, but it is true. Email is far from perfect, but it is no worse than, for instance, a typewritten letter.
As for the other problems, they have a tried and true solution. You take the author of the putative email, sit them down in the witness box, and ask them point blank if they wrote said email. If they admit to it, it is now perfectly good solid legal evidence. If they say they did not, it now becomes a question about whether the witness is committing perjury. And given the email trail, and given what other witnesses have said, the truth does tend to out.
So, imperfections notwithstanding, every email you write could wind up in court. Furthermore, imperfections still notwithstanding, an email trail can easily become very valuable evidence. Particularly in civil trials where the standard of evidence is much lower.
The title is misleading. The article is about what not to write in an e-mail if you want to minimize the chance of the e-mail being discovered by law enforcement if you/your company ever end up in court.
I liked the idea of searching for "between you and me" and "don't share"... that's basically the same strategy people used for some time when searching google for hidden stuff (try pdfs with "for internal distribution only" for example)
Wow, I have to disagree with the very premise here. If you think that it's better to avoid creating "incriminating" emails then go ahead and censor yourself.
If instead you think it's more important to actually try fixing problems, to shine light on poor decisions, to give a voice to reason and sanity, to stand in the way of negligence and malfeasance before it happens, then by all means ignore this article's "advice" as much as possible.
Plus, many of these phrases can be used to avoid incriminating yourself.
"I'm uncomfortable using the very sensitive and highly confidential information in this manner, and therefore refuse to do so." That's probably incriminating for the company, but if they're asking you to break the law or be unethical you need to demonstrate your disagreement lest you be brought down with them.
Plus, that does what InclinedPlane says about actually trying to fix problems in advance.
If I was a CTO or legal counsel at bigcorp I'd say we're going to POP3 and everyone's email lives on their hard drives. Given the risks, I don't understand why companies keep around big, easily subpoena-able email databases.
Maybe for certain business activity, like I dunno, HIPAA related stuff. But I'd be shocked if there are any statutes requiring email retention across an entire organization.
Because when you get a subpoena for everyone's email, it's less disruptive fetching it off the mail server than taking the hard drives out of everybody's workstations.
POP3 means that if someone loses their laptop, someone else can access all your internal emails. Or if someone's harddrive dies you no longer have a backup of email.
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[ 2.6 ms ] story [ 48.8 ms ] threademail is fake. It can be faked. It can be forged. It isn't a legal record, but people treat it that way.
No they don't.
It's evidence and is treated as such, including all the proper oversight regarding chain of custody and regulatory capture/compliance. All evidence can be faked or forged, like testimony, physical evidence, or even legal "records" (what is that supposed to even mean, anyway? Did you know contracts are also evidence? And that they can be forged?)
That's why we have judges, juries and all sorts of messy legal constructs like "truth" and "perjury" and "oath".
None of this stuff is deterministic in the real world and it's a lot more complicated than some guy with a beard producing e-mails from a server in the closet.
As for the other problems, they have a tried and true solution. You take the author of the putative email, sit them down in the witness box, and ask them point blank if they wrote said email. If they admit to it, it is now perfectly good solid legal evidence. If they say they did not, it now becomes a question about whether the witness is committing perjury. And given the email trail, and given what other witnesses have said, the truth does tend to out.
So, imperfections notwithstanding, every email you write could wind up in court. Furthermore, imperfections still notwithstanding, an email trail can easily become very valuable evidence. Particularly in civil trials where the standard of evidence is much lower.
What is this "legal record"?
Email can be a business record. http://en.wikipedia.org/wiki/Business_record
Business records may be used as evidence in legal proceedings. Like all evidence, BRs may be faked/forged. So what?
If instead you think it's more important to actually try fixing problems, to shine light on poor decisions, to give a voice to reason and sanity, to stand in the way of negligence and malfeasance before it happens, then by all means ignore this article's "advice" as much as possible.
"I'm uncomfortable using the very sensitive and highly confidential information in this manner, and therefore refuse to do so." That's probably incriminating for the company, but if they're asking you to break the law or be unethical you need to demonstrate your disagreement lest you be brought down with them.
Plus, that does what InclinedPlane says about actually trying to fix problems in advance.
Because in many jurisdictions it is required by law.
(edit) For publicly traded companies that is.
http://www.slate.com/id/2249124/pagenum/all
I can't return the prototype. We're getting too many pageviews. Sorry for damaging your business. Can the CEO or legal acknowledge it's yours?
Regards, Eoin Murphy
typing
Retards, Eoin Murphy
Insulting, simple to do (g-t keys right next to each other) and the spell checker wouldn't catch it.
As regards the danger words; if you find that your're typing a lot of them, it may be a good idea to reconsider your career choices.