Old or forgotten emails increasingly pivotal in civil, criminal cases
Long-forgotten emails are growing in importance in civil as well as criminal matters, according to Toronto technology and business lawyer Peter Murphy.
Decade-old messages played a prominent role in the trial of former CBC radio host Jian Ghomeshi, as lawyer Marie Henein, defending Ghomeshi on several charges, confronted his accusers about their online interactions with him following the alleged sexual assaults.
Two of the three complainants said in court they had forgotten about the emails or did not realize they were ever sent, including “Trailer Park Boys” actress Lucy DeCoutere, who was surprised by the introduction of a playful and sexually explicit email message sent to Ghomeshi within hours of when he is alleged to have choked and slapped her during a 2003 encounter.
Murphy, a partner at Shibley Righton LLP, says hazily remembered electronic communications are just as likely to prove pivotal in cases between parties in civil litigation matters.
“We can see from the Ghomeshi trial how important emails are turning out to be,” he tells AdvocateDaily.com. “It makes sense that they would become more important because of email's prevalence as a manner of communication. It's really easy to use — almost equivalent to a phone call. Unlike a phone call however, it leaves much more of a record. In the law that applies to civil cases, disclosure is required and that is going to include documents, whether in paper or electronic form.”
According to Murphy, companies can cut their chances of being embarrassed by old emails by drawing up, and then strictly following a document retention and destruction policy.
“Cases like this really underline the need for organizations to have a policy. You want to make sure that you meet any legal requirement to keep documents under statutes, and documents that constitute evidence for a lawsuit you are aware of,” Murphy says. “Having, and following, a suitable document retention and destruction policy minimizes the chance that you will hold on to emails that could be detrimental to your interests in a future lawsuit, and it is also going to reduce your costs of storage.”
Hiring an information technology professional can often be worth the cost when destroying email records, according to Murphy, since hitting the delete button does not always do the trick.
“Some emails seem to live forever, and with the right technology, you can find a lot of electronic documents on a computer that the user may have thought they deleted. Of course, the mere fact that you pressed a delete button on your email program doesn't mean the email becomes irretrievable,” he says.
“There is technology you can use that reduces the chance of retrieval by writing over the space in the hard drive where the email once was. It's advisable to make sure everything is deleted properly so that it is not retrievable in the future for use in some unforeseen lawsuit, where it could turn out to contain a smoking gun.”
In Murphy's practice, which has a particular focus on privacy law, he says emails are often at the heart of disputes, such as when employers become concerned about employee activity and want to gain access to their email communications as part of an investigation.
The situation is complicated by what he calls the “patchwork” of privacy laws in Canada. Federally regulated organizations operating in Ontario are statutorily bound to consider employee privacy while looking at their emails thanks to the federal Personal Information Protection and Electronic Documents Act.
“Non-federally regulated organizations are not subject to the same requirements in Ontario, but that does not mean that they should think they are free of any obligations when it comes to employees' private information. There is a growing body of case law in Ontario with respect to privacy rights,” Murphy says.