Is Your Smoking Gun Shooting Blanks? E-Discovery Can Help You Decide

Every attorney, whether outside litigator or in-house counsel, is familiar with the following scenario. You are knee-deep in litigation when your client or employee hands you a copy of an e-mail or document that exactly supports your asserted claims or defenses  the proverbial “smoking gun” document. It is exactly what you were hoping you would find in discovery. Yet, even as you celebrate, warning bells begin to chime. You realize that your opponent, having no choice, will tenaciously attack the veracity of the document, arguing that “if something looks too good to be true, it probably is.” Moreover, if the document came from a discovery sweep of an organization, it may very well be that the employee who wrote the document is no longer at the company; meaning that you have an independent interest in making sure the document is accurate

Counsel often complain that technology and electronic stored information has actually harmed the litigation process  obscuring the truth by inundating the parties with too much irrelevant information, and raising the length and cost of even routine cases. While this may sometimes be true, technology and the increased use of digital forms of communication also empowers counsel with new tools and abilities. In the “too good to be true” situation, for example, technology empowers the practitioner with the means to independently verify the bona fides of that “smoking gun” document in a faster and less expensive manner. This also protects you and your client from the dire consequences that may result from unintentionally submitting false evidence to the court. Formerly, counsel faced with a questionable document would often have to take depositions, issue specific discovery demands, or hire a document/forgery expert to test the veracity of the questioned document.

Below, we set out a basic three pronged framework for analyzing such communications and determining the veracity of a document and its contents, without having to incur substantial cost and delay: explore the context of the communication; consider any related electronic fragments (e.g., a server log demonstrating an e-mail was sent) supporting the veracity of the information; and examine independent third-party data points that may help verify the contents of the communication (e.g., a references to a phone call).

First, counsel should evaluate the context of the communication. “Context” in this case means answering the “who what, when, where, why, and how” of the communication. Such context is important because it helps confirm that the document at issue is real, and not a complete fake. Among other things, counsel should first inquire whether there are any earlier drafts or versions of the document in the client’s possession. In this day and age, almost every document and communication should have certain electronic indicia of authenticity. Counsel, whether internal or external, should speak
with the client’s internal information technology operations to ascertain what information is being stored that could assist them in answering these six questions. For example, a client that provides a printed copy of an e-mail should also be able to provide counsel with several indicia that answer the aforesaid questions, including system login data for that date (e.g., that the employee was actually logged in to the machine from which the e-mail was sent on that day at that time).

Second, after asking the basic questions and looking for the electronic proofs that demonstrate the document itself is real, counsel should dig deeper and authenticate the substance of the document. Here, counsel should seek electronic evidence validating that the paper version is in fact an accurate, complete and unaltered document. For instance, the client can provide counsel with consent to subpoena a third-party ISP provider that may have an independent copy of the e-mail communication, as it was originally sent, or look for additional documents as they were stored in the organization’s digital environment, including backup media. Here, in-house counsel can play a key role in obtaining the required consents and
minimizing any potential friction.

Third, in certain situations, counsel still must rely on supporting materials evidencing that the document is true. For example, in a recent case, a party was forced to flee a country for political reasons, leaving behind substantial assets. In a suit to recover those assets, the client provided paper documents evidencing his ownership of these assets. However, given the circumstances, he could no longer provide access to any of the native electronic communication that would support the printed copies still in his possession. While unfortunate, these facts also provided a plausible explanation for why the client was unable to produce anything but paper copies of key e-mails and documents.

In such a scenario, counsel should review and request that their client produce any additional pieces of information from around that time period that support the authenticity of the critical document. Further, if the key document references other communications and events capable of being independently verified (e.g., a reference in the document to a phone call or
another document), counsel should attempt to verify those referenced events or documents.

Sometimes, counsel faces no choice but to use the old fashioned methods of proof that are familiar to most practitioners. Today, however, technology often provides short cuts that allow one to avoid having to undertake such costly proofs. Instead, counsel can turn to the client’s internal systems or to third-party servers to determine whether or not a “smoking gun” document is good or “to good to be true.”