Trial by e-mail
And it's the very nature of e-mail that makes it so strong. In convenience alone, e-mail is steadily replacing formal memoranda and simple phone calls in the workplace.
Email has the three Cs -- it's contemporaneous, credible, and, often, crass. Since it's usually written close to the time an event occurs, it intimates truthfulness. It also often contains the author's more blatant and candid thoughts.
Consider how e-mail has played out in the Microsoft trial in the past week alone.
Tuesday, Microsoft Corp. (Nasdaq:MSFT) attorney John Warden introduced a December 1994 e-mail from then-Netscape (Nasdaq:NSCP) chairman Jim Clark. In a moment of weakness, at 3 a.m., Clark dashed off an e-mail to Microsoft suggesting Microsoft consider making an equity investment in Netscape.
Then, on Thursday, Warden confronted Netscape CEO James Barksdale with e-mails sent by Netscape's co-founder Marc Andreessen in October and November of 1994. Those e-mails outlined his plan to undercut competition by giving away the first version of its product for free -- a similar tactic Microsoft has been accused of doing.
And you won't be hard pressed to find damaging Microsoft email either. In the Department of Justice's opening statements Monday, chief DOJ litigator David Boies showed e-mail, sent by Bill Gates himself, indicating Microsoft's goal of convincing Netscape to get out of the Windows browser market.
In its complaint, the DOJ makes reference to numerous emails like this one from Christian Wildfeuer on Feb. 24, 1997: "It seems clear that it will be very hard to increase browser market share on the merits of IE 4 alone. It will be more important to leverage the OS asset to make people use IE instead of navigator."
This week the judge in the Sun v. Microsoft case released briefs that contain potentially damaging information to Microsoft. The primary source of that information?
Email.
I've been there when it's time to produce e-mail that undoubtedly will damage your client's case. Not only do we attorneys have an ethical obligation to do so, but it happens to be the law. Anything else would be illegal and malpractice.
Some attorneys hope the single damaging e-mail will stay buried in the millions of documents produced. But unless the correspondence involved an attorney, and thus is privileged, there is little chance a party may withhold it as irrelevant. In the early stages of litigation -- that is, the discovery phase -- nearly everything is discoverable and relevant.
The moral of the story is your e-mail at work is not private. And don't be surprised to see a blown-up version of it on an overhead projector in a courtroom during your company's next litigation.
Alex Wellen is a former antitrust lawyer and CyberCrime analyst.