‘Smoking Gun’ May Be In Email

Posted by Gregg Mayer on Friday, February 22nd, 2008   

A federal judge in Wisconsin ruled a former county employee, who is suing alleging the county retaliated against him, may search databases of the county in pursuit of “unguarded statements” in email that confirms the county’s liability.

The judge’s ruling, which came last fall, ordered the county to permit the employee to search the archive system, splitting the cost 50-50.

The employee alleges the county eliminated his position for his having filed a false claims complaint alleging improper child support billing.

If there were retaliatory statements made by other county employees, the judge explained, then those employees were unlikely to admit them at depositions or freely say them again. Instead, if those statements were made, then they may be in email where there is often an electronic snapshot of intent.  The judge wrote:

[The county’s email archives are] are a potentially fecund source of relevant information that is not easily obtained from other sources. I say “potentially” because no one can say for sure what’s there without looking, but if defendants or their agents made any unguarded statements tending to show animus toward plaintiff, then they likely did so in their e-mails to each other. (The odds of any defendant in a civil lawsuit remembering and admitting to such statements while being deposed are low).

The case highlights the importance of email in litigation. Lawyers often come looking for the “smoking gun” email once a lawsuit is underway.  It may prove to be a critical source of evidence.

Read the opinion here posted by the E-Discovery Blog, with Lexis’s permission.

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