By Denise Ouellet

For those of you pursuing litigation or really any type of law, e-mail communications will undoubtedly play a major role in the discovery phase of most cases. I recently read this article which considers the implications of an attorney using e-mails that a client has “discovered” themselves. Although this article considers the issue in the context of marital disputes with the family computer at the center of discovery, the lesson applies more broadly.

As the article points out, people are not nearly as hesitant to write things down in e-mail as they would be on paper. You’ve probably all made plans for the weekend or discussed personal topics over e-mail, disclosing more than some would even say face-to-face. So what do you do when a disgruntled client comes to you with stacks of e-mails that they pulled off a computer as “evidence?”

The key to the answer centers on access. Did the client have access to the e-mails prior to litigation? If the answer is yes, then they should be admissible as evidence as long they’re not otherwise protected or were obtained illegally. The question of access is not always so easy to answer. Consider an employee that knows her boss’ e-mail password to perform tasks at his request but then uses that password in an unauthorized fashion or if someone forgets to sign out of an account leaving private messages open for anyone to find. If this happens and a client discovers documents and forwards them to you, you may have an ethical obligation to disclose this or else risk the possibility that you’re aiding your client commit a crime.

The potential crime could be either a violation of the Electronic Communications and Privacy Act (ECPA) or the Wiretap Act which both prevent unauthorized access to electronic communications. For instance, the ECPA states:

(a) Except as provided in subsection (c) of this section whoever—
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

18 U.S.C.A. 121 § 2701(a)

Just because the information is free-flowing and a few clicks away from easily being shared, the risk of losing the e-mails as evidence is probably too high to risk in most cases. It’s probably best to guide clients to only pass along e-mails that come directly to their own e-mail accounts and use proper discovery requests to get all other communications. Chances are your clients will not be e-discovery experts, so getting professionals to do the job properly will likely produce better search results and help you avoid any ethical dilemmas.

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