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Common sense practices can lessen the liability of email evidence in a world gone viral.

Friday, April 24, 2009


Never underestimate the power of the written word - particularly if it is in an email. Emails have become so deeply embedded in today's business culture that little thought is given to the fact that they leave an electronic footprint that in litigation terms is akin to leaving DNA evidence at the scene of a crime.

"Judges are more and more willing to accept emails into evidence at a trial," notes Kerry T. Ryan, Esq. of Tarlow, Breed, Rodgers, P.C. in Boston, who handles complex litigation matters for the firm.  "Disputes that once revolved around 'he said/she said' versions of conversations are now often quickly and decisively confirmed or denied through the introduction of email evidence. Surprisingly, many business people remain unaware of the lasting nature of their email communications."

We've all heard the stories... An employee dashes off an email to a colleague, complaining about a customer or a fellow employee ­ minutes later, the message has been shared with the entire company and even forwarded outside the company to its competitors.  Or, a project manger emails a client to say, "Sorry, we screwed up!" The project manager intends this to be a private communication, a quick apology to maintain good relations with his counterpart at the customer¹s office, not a legal admission of guilt by his employer, as it might be interpreted a year later when the email reemerges as evidence in a legal dispute.

"Since emails can offer quick confirmation of concerns or doubts about a person's performance, a project's completeness, or a vendor's error, it's wise for businesses to periodically review their approach to the use of emails," Ryan remarked. "It seems that common sense often gives way to expediency in email communications ­ a flaw that can be easily remedied by considering the following tactics for business emails."

Basic Business Email Practices 101:

  • Never send an email when you're angry or tired
  • Don¹t take the bait by instantly responding to a nasty email ­ observe the 24 hour rule
  • Don¹t use sarcasm ­ it's often difficult to tell whether it¹s sarcasm or the truth
  • Be professional ­ off the cuff comments may not be construed as they were written
  • Take time to reflect on the content of what you're writing, just as you would with a letter
  • Proofread your emails ­ misspelling and poor grammar reflect back on your business
  • Think before you hit reply ­ are you actually confirming receipt of negative content? If in doubt, compose a new email
  • Limit access to your email password
  • Eliminate previous threads ­ prior emails at the bottom of new emails may contain information that you don't want to share with the latest recipient, particularly if later forwarded to others

And most importantly, before you hit "send," think about what your email would look like as it is blown up and shown to a room full of strangers in a courtroom.


About Tarlow, Breed, Hart & Rodgers, P.C.
Formed in 1991, Tarlow, Breed, Hart & Rodgers, P.C. is committed to providing high quality, comprehensive legal services to its clients. Featuring a breadth and depth of experience and perspective usually found only at larger law firms, Tarlow, Breed, Hart & Rodgers. P.C. offers sophisticated legal counsel to entrepreneurs, businesses, individuals, families, and institutions.

Tarlow, Breed, Hart & Rodgers’ areas of expertise include corporate law, employment matters, mergers and acquisitions, litigation and dispute resolution, estate planning, taxation, real estate, bankruptcy, and municipal law.

The offices of Tarlow, Breed, Hart & Rodgers, P.C. are located at 101 Huntington Avenue, Prudential Center, in Boston, MA 02199. For additional information, or to arrange for a consultation, please call 1-617-218-2000, e-mail, or visit