Increasingly, electronic communication like email records and telephone text messages (txts) are being used in court proceedings to help prove or disprove a claim. The recent case between former David Jones CEO Mark McInnes and a former David Jones employee demonstrates how these records can be used in a court case.
Here we offer advice on how you might avoid the danger of some issues being raised in court or, alternatively, how you may be able to use electronic records to your advantage in legal disputes.
An important part of any court action is the discovery process where each party to the dispute has to provide an affidavit (i.e. you have to swear-up to its accuracy/truthfulness) that lists all documents that exist (or have existed) and are (or have been) in your possession and that are relevant to the matters in dispute.
Importantly, the list must include:
- Documents that might support or be harmful to your claim and/or defence
- Electronic communications such as txts, emails and voicemails.
Traps for the Unwary
Many people don’t realise that it’s now common for historical email records, txts and even voicemail recordings to be disclosed in court actions. Many people also do not realise that even if files have been ‘deleted’ it is possible to retrieve them, often to the surprise and detriment of the person who has deleted them.
For this reason, in some court matters, it’s the discovery process that can be the most revealing and damaging. For example, we have seen instances where:
- Deleted emails and txts have been ‘retrieved’ using sophisticated, but now easily available, computer programs/technologies.
- People have sent electronic communications in the heat of the moment without any thought about how the comments may be interpreted in the cold light of day (or in a court room).
- There was no thought how such records might be used in the future.
- Frank internal company communications that may amount to admissions of fault have been internally circulated when discussing the matter.
The DJ’s Classic Example
The DJ’s litigation is a good example of electronic communications being presented and used in court proceedings and one can only assume that the former DJ’s CEO never expected the following txt to be presented in a court case where he faced allegations of sexual harassment:
“Hi kristy, I am pleading with you to show some mercy on me…I will be totally destroyed…please call me to understand what is about to happen….i no my attempt to kiss u was wrong and I’m so so so sorry…”.
Electronic communication has a greater degree of ‘immediacy” which can result in people writing emails and txts as if they are speaking face-to-face or by telephone. They can, therefore be less guarded about formalities and can be more prone to accept blame, sometimes incorrectly.
Worse, in some cases people can make harmful admissions or record their own wrong-doing.
In a commercial setting, there are a number of rules that are worth following:
- Don’t send an electronic communication that contains material that you would not be comfortable having presented in court.
- Don’t assume that because you have deleted the communication from your computer or other electronic devise that it’s actually removed forever– it’s quite possible for ‘deleted’ files to be retrieved from your computer or mobile phone. Indeed, most businesses these days have automatic storage as part of the computer system’s normal backup. And most people never consider the fact that their deleted file might still exist or be stored on the recipient’s computer!
- Be careful of whom you “CC” to the email.