Electronic Evidence as the Smoking Gun


Electronic communications–particularly email–may contain a treasure trove of evidence in commercial litigation matters. There are 3 key reasons for this truth. First, email is actually a very informal way of communication. Why? I don’t understand it merely is. Though I insist on special grammar and syntax within my own”hardcopy” written correspondence, court pleadings, etc., in emails I sometimes decide to not adhere to the principles of written English.

Second, though electronic manufacturing services of us understand it’s not, email”feels” anonymous. I am convinced there has been studies conducted in attempt to comprehend just why email believes anonymous. Maybe it is due to the instantaneous nature of email–you can just port your emotions and kneejerk reactions instantly and press on the send button, rather than having enough time to think in your own preferred notions since you would in case you were made to sit down and write a letter; sign it along with your hand; put it in a envelope; put a postage on in itand choose it into the mail box and mail it. No matter the reason(s), the fact of the matter is that email does feel anonymous.

The 3rd reason email evidence can contain critical signs in a business litigation case: permanence and retrievability. Most people don’t realize that once they”delete” a contact from their email program it stays on the pc or network unless and until the elements of the computer memory containing the email are overwritten by additional details. You’ll make certain, however, that every single digital commuincation you create — either email or is being listed somewhere. Perhaps in your own company’s media host, perhaps on your online service provider, or simply in your own computer’s hard drive. Savvy litigators know that fact and, depending the stakes of this case, you could Wind up receiving a letter such as this if your business find itself in a company dispute:

This is a note and demand which signs identified below in paragraphs 2 through 5 must be immediately maintained and kept by you until further written notice by the undersigned. This request is vital, being a paper print out of text contained in a computer file does not completely reveal all information contained within the email file.

The continuing operation of these personal computers identified herein will result in the destruction of important signs due to the simple fact that electronic evidence can be readily changed, deleted or otherwise modified.

For purposes with this notice,”Electronic Data” shall include, but not be limited to, all text files (including word processing documents), spread sheets, e-mail files and advice regarding email (including logs of e-mail history and usage, header info and”deleted” files), Web history files and preferences, graphical image format (“GIF”) files, each of other graphical format pictures, data bases, calendar and scheduling info, computer system activity logs, along with all of file fragments and backup files containing Electronic Data.

1. Please preserve and retain all Electronic Data made or obtained by these persons:

John Doe, CEO

Bill Brown, Co O


Emails sent or received from any other employee or agent of ABC Company, DEF Company, or XYZ Company.

3. You must Avoid working (or eliminating or shifting fixed or external drives and media attached thereto) standalone personal computers, network workstations, laptop and/or notebook computers Run by the following persons:

John Doe, CEO

Mary Smith, CFO

Bill Brown, COO

4. You must retain and preserve all backup tapes or other storage networking, whether on-line or off-line, and extend from overwriting or deleting information contained thereon, which might contain Electronic Data identified in paragraphs 2 through 4.

In order to alleviate any weight upon you personally, we are ready to immediately enlist the help of a computer forensic expert to image and examine each of drives and media into your custody and control that might contain Electronic Data relevant for this matter. If you enlist your own computer forensics expert to generate evidentiary pictures of most electronic evidence identified previously, demand is made that such expert utilize industry standard computer forensic software so as to facilitate and enable the exchange and processing of such evidence in this matter.

Should your organization get a letter like that, you ought to take it extremely seriously. Continuing to make use of any computers or other devices found such a letter is going to result in data being overwritten, and also the courts would interpret as destruction of evidence. Destroying evidence can not just result in serious sanctions against the business or individual from the case at hand, since we watched throughout the Enron mess it also can result in prosecution.

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