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e -nuff! : Practical Tips For Keeping Emails From Derailing Your Case

e -nuff! : Practical Tips For Keeping Emails From Derailing Your Case. Presented by Jerry L. Mitchell. INTRODUCTION. Email has become one of the most important forms of communication in the business world

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e -nuff! : Practical Tips For Keeping Emails From Derailing Your Case

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  1. e-nuff! : Practical Tips For Keeping Emails From Derailing Your Case Presented by Jerry L. Mitchell

  2. INTRODUCTION • Email has become one of the most important forms of communication in the business world • One recent study estimated that there are approximately 850 million business email accounts in the world • Last year an average of 89 billion business emails were sent each day • Fighting over retention, destruction and production of emails has become a major and expensive issue in litigation WWW.KASOWITZ.COM

  3. Email Is Dangerous • Ineffective form of Communication • Per Dr. Albert Mehrabian of UCLA, Communication is: • Tone 38% • Visual 55% • Words 7% • OK for facts or data • Doesn’t work for opinions, feelings, sensitive issues WWW.KASOWITZ.COM

  4. Email is Dangerous (con’t) • People will say things in an email they would never say in person or in a letter • Creates exhibits you will see again at your deposition • Lawsuits can be won and lost, and even powerful politicians brought down, by the content of, or the failure to preserve, emails WWW.KASOWITZ.COM

  5. Have A Written Email Policy • Notice that computer and email system are company property and that company monitors email • Content restrictions • Treatment of confidential information • Back-up tapes • Archival • Disaster recovery WWW.KASOWITZ.COM

  6. Have A Written Email Policy (Con’t) • Retention/Destruction • Balance business needs vs. litigation risks • Specific retention requirements may apply • Preservation obligations in litigation • Enforcement WWW.KASOWITZ.COM

  7. Train Your Email Users • Cover policies • Obtain acknowledgement • Limitations of email • Etiquette • Proof read/spell check • Don’t use text-style abbreviations • Check attachments twice • Traps • Auto-fill/Auto-correct • Reply all WWW.KASOWITZ.COM

  8. Train Your Email Users (con’t) • Traps (con’t) • “Recall” What the recall email says: “John Jones would like to Recall this message” What the recipients actually see: “Stop whatever you are doing and read the last email from John Jones word by word to find out where he screwed up” WWW.KASOWITZ.COM

  9. Preservation Obligations In Litigation • Major issue in litigation today • Issue a litigation hold when you reasonably anticipate litigation • What is “reasonable anticipation of litigation”? • May trigger limitations • “Work Product” privilege claim may trigger duty • Put it in writing to anyone involved in the transaction at issue WWW.KASOWITZ.COM

  10. After Litigation Hold In Place • Halt auto-deletion of emails • Monitor compliance with litigation hold • Be informed of potential sources of electronic data • If necessary, take possession of sources of data • Keep data in its native format • Document your preservation efforts • Consider issuing a request to opposing party to preserve relevant data WWW.KASOWITZ.COM

  11. Failure To Preserve - Spoliation • Elements: • Whether party has a duty to preserve the evidence • Whether that party negligently or intentionally spoliated evidence; and • Whether the spoliation prejudiced other party’s ability to prosecute or defend the case WWW.KASOWITZ.COM

  12. Failure To Preserve – Spoliation(con’t) • Consequences: • Jury instruction • Adverse inference • Presumption • Monetary Sanctions • Exclusion of evidence, claims or defenses • Death Penalty Sanctions WWW.KASOWITZ.COM

  13. Lawyers Are Not Immune • Not all communications are privileged • Emails can be produced in certain types of cases, such as legal malpractice • Consider purging red-line notes and draft versions of documents (not subject to litigation holds) • Limit email communication with experts WWW.KASOWITZ.COM

  14. Related Electronic Discovery Issues • Personal devices/email addresses • Must include them in your litigation hold if used for business purposes • Sanctions have been imposed for failure to preserve when relevant and responsive • Can ISPS be subpoenaed to obtain personal emails? • Instant messaging • Address these in your written policy! WWW.KASOWITZ.COM

  15. Conclusion • Q & A Session • Send me your doozy emails Jerry L. Mitchell, Partner Kasowitz, Benson, Torres & Friedman LLP 700 Louisiana, Suite 2200 Houston, Texas 77002 713-220-8800 jmitchell@kasowitz.com WWW.KASOWITZ.COM

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