In today's world of ever increasing technology, much of what had been the written word is now the Cyberspace word. Much of what had been printed and transmitted by mail, or overnight delivery or facsimile, is now sent by e-mail or on-line group session. In short, messages that would have required a few days or a few hours to prepare and deliver five years ago, can now be transmitted electronically within seconds. All well and good, but what does this have to do with the law, you might ask?

Perhaps the most important step in determining someone's rights or defenses in an actual or potential lawsuit is determining what the evidence will show if a case is brought to trial. One of the most compelling forms of evidence is the written word. Judges and juries can hold documents and read them for themselves. When they look at contemporaneously prepared documents, they often conclude they do not necessarily need to decide whether the testimony (like from a live witness in Court) is truthful. Many times the fact that something appears in a document, usually generated years prior to the trial, is enough. Interesting observation, you say, but what does this have to do with technology or e-mail?

When writers needed to put pen to paper (literally) or at least had to type text (or have someone type it for them) and then sign the document so that it could be physically delivered, they usually took a fair amount of care to make certain that they meant what they wrote and were willing to abide by what they wrote. The very process of creating the document tended to make the writer think about it, sometimes edit it, and in general appreciate that the document might come back to "haunt" him if he did not really mean what he wrote.

Now, the fact is that many companies use electronic mail as a means of allowing employees to communicate with each other, both in the same office and around the country. In addition, many of us have personal computers, laptops and notebooks that we use to communicate with the office while at home. Add to that the number of people who use e-mail on a more personal level over the Internet, and the number of people who participate in on-line talk sessions (whether at work or through postings to Usenet or other newsgroups or in "chat rooms), and it soon becomes apparent that the Cyber "document" touches nearly everyone. Indeed, it is an extremely efficient means of communication.

The problem with e-mail and on-line sessions is that many people believe or assume that those methods of communication afford anonymity or at least represent an ephemeral exchange similar to the spoken word. (Anyone who has ever participated in an "I said versus you said" argument realizes that the merely spoken word addressed to but one witness can be very difficult to reconstruct much less pin down.)

This view about Cyberdocuments, that they are much like quarks -- fleeting at best -- comes partly from the "chat-group" and "screen name" culture born from the Internet and the newsgroups of the Usenet. In most cases this view is not well founded. In addition, many people believe or assume that an e-mail message exists only until it is read and then erased by the recipient; then, they think, it's gone. For some reason, as a result of these factors, people transmit messages via e-mail, post messages to newsgroups or make remarks on-line that they would never commit to writing (recall some of the e-mail messages you have seen or heard about). This is a huge mistake.

Most e-mail systems do not afford anonymity. The same is true of on-line sessions. And most office network systems that link office computers use some form of data backup, be it tape or optical disk. The backup programs are designed to periodically back up all data on a system, until all of the backed-up data is transformed onto long term storage media. As a practical matter this means that a large percentage of e-mail messages, whether or not erased by the recipient after being read, are backed up and then stored with all of the other computer data on disks and tapes. Even in the Usenet world, efforts are underway to devise means for archival study of years of prior sessions (one such approach being the Deja News search engine).

Additionally, it is usually very easy to capture a screen or print an e-mail. Someone who participated in the communication process can generally do that legally. Indeed, while there are some variations in different states, most of the "privacy" protection that the law affords deals only with "eavesdropping" type activity. And in a lawsuit, when the information becomes relevant, the courts will often demand production of the material even if an eavesdropper gathered it or the party who sent it thought the information was "private" or "off the record." (Of course, truly privileged material, such as privileged communications with a lawyer or a clergyman, usually have a different legal analysis that applies to them)

Good lawyers know this all too well. As a result, requests for copies of all stored or printed e-mail messages are frequently made in divorce cases, business disputes, sex-harassment cases, product liability cases, and almost any other type of case where what a person says is at issue. The American legal system has as one of its most fundamental tenets the search for truth. Judges therefore with increasing frequency order that these back-up and printed copy records be produced in such litigations. Even the President of the United States confronts this problem. The Reagan White House had, by Court order, to preserve e-mail backup files as part of the Iran-Contra investigation. President Clinton had to produce computer back up in connection with the Whitewater investigation.

A good rule of thumb, and one that we advise our clients, is this: If you would not put your message in a written letter on your personal (or company) stationery, then you should not transmit it via e-mail, or in most instances in any other form, especially in the workplace. It really comes down to the application of common sense . . . and the realization that, just because you didn't send it in a hard copy writing, that doesn't mean that it doesn't exist!