Many significant cases today are won or lost by email, text messages, and instant messages. These kind of informal, quick communications are a gold mine of useful information. They often reveal what people were really thinking and doing, and contradict what they later say they were thinking and doing.
Electronic communications are a gold mine because most people still think that since electronic communications are ephemeral, just appearing for a while on a computer screen, that they are not real, at least not real-real like paper. So they write incredibly stupid things in electronic communications that they would never write in a letter. People also naively think they can get rid of pesky emails, texts, and the like by simply hitting the delete key on their keyboard. How foolish. I tell people that the “e” in “email” stands for “evidence.” It could also stand for “eternal.”
Someday people may wise up and never put anything in writing that they do not want to see it court, but probably not. Most people are not that careful and often say and do dumb things. Electronic communications have become part of the fabric of our everyday life. We simply cannot do without them, and so, we will continue to generate evidence that can can and will be used in court. So it seems certain that the search for this evidence is here to stay, and that the lawyers of tomorrow will necessarily be quite adept at finding and using such evidence to win cases.
The following is a four-minute video excerpt from my law school class with Professor William Hamilton at the University of Florida on why electronic communications are now critical evidence. In the video I also address some of the issues involved in the discovery and production of such communications, including privilege, email chains, and text messages. These lawyers of tomorrow in our class certainly “get it” and will likely be leaders in pursuing electronic communications in the coming years.