Electronic mail, or email, as we know it, was first debuted between the late 1960s and ‘70s by Ray Tomlinson. Its purpose then was the same as it is now: to send brief messages to one another.
When it debuted, email systems were put into place on specific computer networks that were used to actually send these emails. The systems used on these networks served several purposes: to send, receive, and store messages from its users, first nationally, then later, internationally. It was strictly used to transfer text, but similar to everything else it developed, and thus was eventually able to contain more character sets and images.
Oh, and about those computer networks: they became the stepping stones to creating the Internet as we know it today.
This brief history aside though, how do they connect to eDiscovery?
What are emails and why are they important?
By definition, an email is a message; it’s also “a system for sending messages from one individual to another via telecommunications links between computers or terminals using dedicated software.” There are many different types of emails that we’ve all seen appear in our inboxes: newsletters, promotional emails, surveys, the ever-unpopular chainmail, and general correspondence.
Once upon a time, emails would stack on top of one another, making it difficult to keep track of who was sending what, and when. Emails were always getting lost and confused, and as eDiscovery became more prevalent in the legal world, this became an issue.
Then, another development in the email world occurred, and email threading became the trend. As we know, email threading makes an inbox so much more organized. Messages are organized by subject line; the original message is stored at the very top; and any replies are displayed underneath. It’s an easy way to keep track of correspondence as it floods our inboxes.
The importance of emails may be obvious: it keeps a dated papertrail. When something is put into writing, it becomes a record of what is said and/or done. It holds the sender(s) accountable.
For example, if litigation occurred over a dispute about rent, the landlord (plaintiff) may claim that the tenant hadn’t paid rent on time with no notice. The tenant (defendant), however, could have printed out emails containing dates, timestamps, and the landlord’s email address to prove to the judge that they had actually given notice.
How do emails affect eDiscovery?
Emails are typically the main method of communication between two individuals who don’t know each other well, or between those in a more professional setting. One of the biggest ways emails can affect eDiscovery is whether or not the emails have been archived.
If your emails aren’t archived, then they should be. Archiving emails has a variety of benefits — such as server speed and potential recovery — and in the eDiscovery realm, archiving is a tremendous help. See below.
An archive of emails is a secure location where copies of all emails are stored. This could be a physical location or in the cloud. Regardless, it’s much easier than having emails strewn about on computers that have been used by past and present employees.
The copies of the emails that are put there are in the most native format, and it preserves the integrity of everything within: content, attachments, and metadata. It makes searching for a certain person or subject very quick & easy.
Remember the EDRM process? Having an email archive plays a huge part in moving forward with that. It will automatically go through collection, preservation, processing, and review. The eDiscovery professional(s) involved will then have to analyze for context and relevance and produce the emails, but all of the tedious work is put behind them.
By not archiving emails, a company is risking an extremely long amount of time, money, and effort that might be put into place should the chance of litigation occur. It can take a company months to find any and all emails necessary for a request, and if that collection is not done in a certain amount of time, fees will have to be paid for obstructing the flow of the litigation process.
How are emails used in eDiscovery?
Emails are considered as electronically stored information (ESI), and are basically used and handled in eDiscovery virtually the same way social media is used.
As we mentioned earlier, everything collected for eDiscovery is done so for the possibility of litigation. So, this starts the EDRM process.
It must be identified to determine where the emails need to come from (home computer, office computer, mobile phone, etc.), and from the people involved. A legal hold will be placed on the email accounts of those involved, thus preserving them.
The emails are then collected, processed, and reviewed (which again, is done very easily if the emails are archived) so that only the most relevant emails are surfaced. They are then analyzed for context. Because emails are automatically dated and timestamped by the network in which it was sent/received, they can be used to establish a timeline during a certain event. The content within the email can also be very telling of a person’s state of mind while it was being written (though a speculation objection could be made by doing this).
Finally, after moving through the EDRM, they are produced for the attorneys to be presented to the judge as evidence.
Just as everyone uses social media, everyone sends emails. Therefore, everyone should be aware of how emails are used in eDiscovery.
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