Subpoening personal emails in business trials?
It’s not surprising (but stupid imo) that many people send personal emails at the office during business hours and from their business email account. It is more surprising that many people use their *personal* email accounts to conduct business. In fact, many Democrats were upset that Karl Rove used his RNC account for official White House business but that those email disappeared when they were subpoenaed. (I guess they were not discoverable after all.) But Rove is hardly alone in using alternative email accounts; the practice of using personal emails for business is indeed quite widespread, as noted in this interesting legal analysis of this issue:
An April 2007 survey revealed that 33 percent of employees use personal e-mail accounts at least once or twice weekly for business purposes, and that 17 percent do so daily. Moreover, nearly 16 percent of the survey participants admitted to using their personal e-mail accounts to avoid corporate review or retention of their messages.
As I read it, the courts are trying to strike a pragmatic balance between defendants’ privacy and plaintiff’s discovery interests. One case recognizes that giving a legal adversary access to all personal emails or even a harddrive is “overbroad.” Another case penalized a defendant for intentionally terminating a yahoo account in order to avoid disclosing potential evidence.
The courts are struggling to come up with solutions. In one case, the emails were filtered by an outside expert for relevance. In another case, the defendant was ordered to determine the relevant emails himself. These approaches have obvious problems. Perhaps more promising, some companies are offering to this filtering automatically. These technologies are important because they can make discovery more effective at finding relevant emails while protecting the defendants privacy for irrelevant ones.
The analysis offers common sense advice: “companies should consider educating their employees through employee handbooks, notices, meetings and regularly scheduled reminders that using home computers and personal e-mail accounts for business may well require those computers and e-mails to be reviewed for responsive information if there is litigation. And employers may wish to discourage their employees from using private e-mail accounts to conduct business.”
I suppose that the courts are being reasonable about this process. Still, I worry that crucial decisions about email discovery motions will be decided by who has the better lawyer rather than the merits of the case. They *are* always watching you!
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