Polly Want An Email?

 Live in such a way that you would not be ashamed to sell your parrot to the town gossip.

                                                                              -- Will Rogers

When reviewing and establishing a document retention policy for your business, it pays to pay attention to what constitutes gossip - or, as we call it, hearsay - in the electronic world.  Because sometimes, even e-hearsay can make it into the courtroom.

In a blog posted in WSJ Digits, Ethan Smith reported that thirteen record labels sued the on-line peer-to-peer music sharing program LimeWire for copyright infringement and related infractions. In May 2010, the Court faced Defendant's motion to suppress electronic evidence, such as exhibits of LimeWire's email chains, online exchanges and internet forum postings, on the grounds that it was inadmissable as hearsay.

The Court denied Defendant's motion . . .

Specifically, the Court held that:

  • A statement is not hearsay if it is offered against a party and is the party's own statement, in either an individual capacity or a representative capacity;
  • An admission made by a party's employee is admissible against the party if made during the course of the employee relationship and relates to a matter within the scope of the person's employment; and
  • Where a statement is deemed admissible as an admission by a party-opponent under Rule 801(d)(2), the surrounding statements providing essential context may also be considered.

In short, the Court ruled:

In this case, the Defendant challenged a number of exhibits containing email chains and internet forum postings that were written in whole or in part by LimeWire employees, during the course of their employment with LimeWire. The emails and posting pertained to infringement being committed by LimeWire users, and thus were related directly to matters within the scope of the employees' employment with LimeWire. The exhibits therefore constitute direct or vicarious admissions by Defendant, are therefore not hearsay, and are therefore admissible.

The Court went on to state that messages sent by third parties to defendants, were admissible to provide context for the email messages sent by defendants in response. Additionally, email chains and online exchanges were deemed admissible as non-hearsay on the ground that the messages were offered to establish defendants' knowledge and state of mind as to the activities of its software users.

The lesson here? Hearsay objections will not always work when it comes to electronic evidence -- whether of the e-mail, internet posting, social network, or other variety. 

The solution?  Train your employees to recognize that the e-cracker crumbs they leave in their wake -- their emails and internet postings -- are admissible discovery.  These items, in short, are their parrots.  Most importantly, don't wait until litigation arrives, but educate employees beforehand.  Once employees are clear as to the ramifications, you won't have to worry as much if the parrot has to make a guest appearance in the courtroom, as there won't be nearly as much gossip for him to share. 

Love Doesn't Conquer All - in Cyberspace

Ah, l’amour. With Valentine’s Day upon us, our thoughts turn to hearts, flowers, chocolate and….texting? When George Bernard Shaw said, “The perfect love affair is one which is conducted entirely by post,” one doubts that Mr. Shaw could have ever imagined that the “post” would evolve to allow electronic, nearly instantaneous, communication about affairs of the heart, nor is it likely he would consider the dangers of electronic communication romantic. 

One couple’s use of text messages to communicate during their affair led to public humiliation, fines and jail time. Tresa Baldas, writing in the National Law Journal, reports that on Tuesday, January 7, Christine Beatty - the former top aide to Detroit’s ex-mayor Kwame Kilpatrick - was sentenced to 120 days in jail and ordered to pay $100,000 in restitution for her role in a text-messaging scandal that put her boss - and alleged lover - behind bars. Mayor Kilpatrick’s administration had been accused of retaliation against police officers who discovered Ms. Beatty’s and Mayor Kilpatrick’s affair. Text messages between the two were admitted into evidence and proved that Kilpatrick and Beatty had lied about their affair and that they sought to mislead the jury regarding the retaliatory actions taken against the police officers. The trial cost the City of Detroit $8.4 million, and both Beatty and Kilpatrick were ultimately charged with felonies including perjury and obstruction of justice. Their text messages were published in the Detroit Free Press.

 

Text messaging is discoverable, as lamentably learned late by the amorous couple. If it’s something you wouldn’t want your mother to see - or wouldn’t want published in the Detroit Free Press or anywhere else - think twice before texting it.   As Earl Warren said, “The fantastic advances in the field of electronic communication constitute a greater danger to the privacy of the individual.” Don’t be the one whose secrets in the area of “l’amour” are front page news, fodder for the water cooler gossip groupies, or worse - a source of humiliation and liability.