With so much attention focused on e-mail production in today’s routine civil litigation, one would think that both parties would have an acute interest in identifying exactly how many types of e-mail accounts were used by the very custodians involved in the case? A requesting party will assume that by specifying in their discovery request that; …any and all e-mail messages pertaining to the complaint for a specified time period would be sufficient description to compel the responding party to conduct their discovery and subsequent review for all responsive, non-privileged e-mail messages. In a majority of these discovery efforts however, the e-mail search is routinely limited to the client’s business networked e-mail system exclusively.
From the responding party’s perspective, their search for all responsive, relevant e-mails from the company’s networked e-mail system is standard operating procedure. In such a scenario, both parties run the risk of completely overlooking the existence of an individual employee’s use of their personal Internet Service Provider (ISP) e-mail account service such as Hotmail, AOL or Instant Messaging (IM)! Indeed, an employer may not even be aware of which employees’ access and utilize their personal ISP e-mail accounts from their work computers on a regular basis. If the employer lacks this awareness, chances are that their attorney will also be in the dark about ISP e-mail and IM as well throughout the production process.
Web-based e-mail is not a recent phenomenon for sure. In fact, web-based e-mail is a well known method of choice to misappropriate an employer’s proprietary intellectual property and trade secrets. All the employee has to do is access company files of interest and attach them to their e-mail account and send it off to whomever. Web-based e-mail and IM are also a preferred way of communicating when one desires to bypass the corporate e-mail system which may be periodically monitored. That fact alone should be sufficient reason for a requesting party to stipulate that a thorough search for web-based e-mail and IM be conducted by the producing party.
One should be asking at this point, so what’s the problem? Why isn’t the production of web-based e-mail and IM a routine practice? There are two main reasons for this: as mentioned before, unless the requesting party makes a point in bringing up the search and production of web-based e-mail and/or IM it may not otherwise come up. Second, the only way to search for the existence of web-based e-mail or IM on a computer is to conduct a forensic examination of the custodian’s hard drive. Web-based e-mail and IM are rarely if ever programmed by the user to be saved in a file folder on their computer. Hence, web-based communications are found in the same places where deleted files are located and recovered. If the producing party is unaware of the existence of web-based e-mail or IM that could be relevant to the case and the requesting party has not raised the issue – well, you can figure out what the result will likely be.
The opportunity to bring this topic up in the Rule 26(f) and Rule 16(b) pretrial conference is probably a good place to start. Keep in mind that the successful recovery of web-based e-mail or IM is contingent on a number of factors; elapsed time from the creation of web-based e-mail and IM, available free space on the hard drive, and the user’s level of computer usage activities to name a few.
CyberControls, LLC is comprised of computer forensic specialists’ and pretrial litigation consultants who are prepared to assist litigators in formulating effective e-discovery strategies that comply with the recently adopted FRCP Rules and the E-Discovery Guidelines for State Trial Courts in all jurisdictions. We welcome the opportunity to discuss any specific issues that you may be facing as a respondent or requesting party in a commercial litigation matter at 847-756-4890 or visit our cyber site at http://www.cybercontrols.net. You are also invited to write to us at firstname.lastname@example.org.
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