Your "thoughts" could end up as E-Evidence against you

Think before you write, stop before you hit “send,” process your thoughts and take the time to evaluate your own good conscience and common sense – Otherwise, your “thoughts” could end up as E-Evidence against you.

Imagine having just a single phone line at home – a rotary dial – and when you wanted to talk to a friend or loved one, you had to wait patiently as each number wound its way around the dial before you could insert your finger into the round hole to dial the next one. Imagine having to sit down and write a letter to friends far from home – or having to use erase strip tape or white out if you made a mistake or wanted to make changes of any kind. Imagine having to take your time to think about what you are going to say before you sent out a message.

When I was growing up in the sixties and seventies, there were no cell phones, laptops, Blackberries, Palm Pilots, emails, or even desktop computers. While this may not seem so bad, imagine what life in our household was like: There were six children in my family, eight of us in all – and on any given day, one of us had a crisis to put out, information to relay, directions to give, or instructions to dictate. My mother, being the one who normally put out the fires and catered to our needs, certainly had her hands full. With no Internet to help her out, she had to come up with the solutions and answers to everything on her own.

Meanwhile, my father – a physician – was one of a few to carry a pager, the only device of its kind. I remember the weeks he was on call, we would hear his pager go off and he would have to get to a phone to call his service and write down the number of the doctor, nurse, pharmacist, or family member of a patient who was either in the hospital, heading to the emergency room, or in need of medical advice. His office had a fax machine used exclusively for running his medical practice. While he was lucky enough to be one of the only community members with such a device, as a physician – (like it was with my mother) – the lack of instant communication was a hardship that was a way of life.

Fast forward to today: We are in a “computer” age of DSLS and high speed wireless internet connections. We can relay information at the speed of light and we are emoting instantly without regard for consequences. So often, the peskiness of conscience and thought do not impede our ability to communicate hostile, confidential, inappropriate, hurtful, private, or proprietary information. It is all just so darn fast that a whole new world of electronic discovery and e-evidence has emerged as the guardian light in the prosecution and defense of civil, criminal, domestic, divorce, and commercial litigation.

I just returned from attending a continuing legal education seminar at the Princeton Club in New York City and I learned how easily these communications are being used to “discover” facts and get to the truth in a dispute. Indeed, whole new fields of computer forensic businesses are popping up all over the country. In litigation, anything is discoverable that is likely to lead to admissible evidence. Federal laws, with state laws not far behind, are being enacted to account for the preservation, exchange, and disclosure of crucial e-evidence, to protect against the inadvertent discovery of e-evidence that should not have been exchanged to the other side, and the punishment and sanctions to be used when a party, and his or her lawyer, allows e-evidence to be destroyed or altered. This is serious business. If you doubt it, just check out the website www.smokinggun.com.

The time it took to actually write a letter and edit it, or to dial a number on a rotary phone, often acted as a cushion against the wrong information from being “sent” and communicated. So my advice: edit your thoughts, think before you write, stop before you hit “send”, process your thoughts and take the time to evaluate your own good conscience and common sense. Otherwise, your own e-evidence may be admissible damaging evidence used by “the other side” to get a “win.”

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