E-mails may be lurking to be retrieved in discovery

The following helpful information about using e-mail in discovery proceedings is p-rovided by the ISBA Committee on Legal Technology.

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E-mail is the rocket fuel of communications that makes our world economy fly at lightning speed.

E-mail has replaced telephone conversation as the preferred mode of transmitting and receiving personal and detailed information because it is in a relatively secure, written format.

As opposed to a telephone conversation, e-mail can be saved, printed with attachments, or disseminated to other parties in duplicate, to minimize confusion among diverse parties about a myriad of topics.

These may include: “What the boss wants us to do.,” or “This is exactly what the customer ordered,” or “Who said what, when, where and why about whom.”

A good attribute of e-mail is that it can be conveniently saved electronically on a PC hard drive, on an ISP server, on another electronic reservoir, or in printed form.

The fact that e-mail can be saved, however, is that like rocket fuel it has a volatile characteristic: If e-mail exists in a form that can be retrieved, it is discoverable. See Supreme Court Rule 201(1).

The retrievable nature of e-mail renders each individual transmission (including IM's) a potential warhead, just waiting to be allowed to open and explode with information about litigated matters.

The most relevant of legal issues reflected in e-mail usually boil down to three: Notice, Notice and Notice.

A case study regarding how not to handle e-mail discovery is in order, given the disastrous effects of an unexpected smoking gun transmission.

Lucash vs. Illinois Power Company, St. Clair County case No. 01-L-699 (consolidated with No. 02-L-815) is a good case study on point regarding discoverability and the power of our courts to address the failure of counsel to properly produce e-mail as discovery.

Lucash involved a claim against Illinois Power for the wrongful death of two youngsters whose vehicle struck a power pole, causing an electrified line to drop down.

Generally, plaintiffs alleged that one youth was electrocuted outside the vehicle and the other burned to death inside the vehicle, due to IPC's facilities not being properly maintained or installed. Litigation ensued.

IPC was served with standard discovery of interrogatories, request for production, and depositions were conducted of relevant employees.

IPC never produced to plaintiffs an internal e-mail that appeared to indicate that its equipment did not function properly. In addition, the internal e-mail raised the dark cloud of a possible cover-up.

The possible cover-up issue became a sharp litigation point because a do-gooder whistleblower at IPC had printed out the e-mail and kept it in a lunchbox for months prior to turning it over to plaintiffs counsel.

Plaintiffs counsel then immediately sought production of all such e-mails as a reiterated production request.

The problem compounding discovery of the smoking gun e-mail was that it was discovered, on a lark, quite late in the litigation.

Therefore, the court fashioned a remedy to ensure the wheels of justice would not be impeded in Lucash, and perhaps in future cases, by non-production of relevant e-mail.

In an order dated Jan. 18, 2005, the Lucash court relied on Campen vs. Executive House Hotel Inc., 105 Ill.App.3d 576, 586, 434 N.E.2d 511, 517, 61 Ill.Dec.358, 364 (Ill.App., 1982) as authority to levy sanctions for Illinois Power's violation of Supreme Court Rule 213(c), when it failed to supply information requested by plaintiff and which was, under principles of agency law, known by the company.

The court further found, under authorities cited in Sanchez vs. Phillips (1977), 46 Ill.App.3d 430, 434, 5 Ill.Dec. 36, 361 N.E.2d 36), that refusal to produce e-mail was unreasonable.

Judge Robert LeChien held at page 24 of the unpublished 0rder:

“Plaintiff's request to strike IP's pleadings goes too far given the remedial, and not punitive nature of Rule 219(c). There was a great danger that discovery violations such as occurred in this case would have remained forever undisclosed.

“Not every attorney will be persistent enough to force compliance or as lucky to have a whistle blower leak hidden information

The court has found numerous unreasonable refusals to comply with the rules. The court also finds that the misconduct was willful and directed, controlled and ratified by IPC. Sanctions suited to remedy the misconduct are in order.

“Presentation of and deliberation on plaintiffs' motion for sanctions has caused a disruption of the case management disclosure schedules...”

The judge went on giving reasoning behind the remedy and delivered the brunt of the remedial measure:

“Therefore, IP is barred from presenting testimony or other evidence that contradicts the essential facts as set out in the [subject] e-mail. This includes a bar of any IP witness that would assume facts contrary to those contained in the e-mail.

“The inclusion of this evidence is directly related to IP's unreasonable refusal to reveal its knowledge of the [subject] evidence in written and oral discovery.

“In addition, the court will instruct the jury with IPI 5.01 and permit the plaintiff to argue that IPC failed to produce evidence to contradict the [subject] e-mail because IP believed additional evidence would be unfavorable to it.”

The court reserved further sanctions to be determined, given any further ripple effect that the smoking gun e-mail might cause.

Regretfully, a complete discussion of discovery of e-mail is not possible in this limited space, but those interested in various electronic discovery issues, including e-mail, will find a plethora of information at the following blogs: www.cybercontrols.net; www.kenwithers.com; www.fjg.gov, and www.thesedonaconference.org.

The unpublished order referenced above might shed some light on the discoverable nature of e-mail and the potential pitfalls of improper production of e-mail documents. The order in Lucash was not appealed, and the parties entered into a confidential settlement.

Ultimately, spoliation claims usually end up as claims against the law firm representing the party found as spoliator. Produce e-mail with prudence.