We represent employees is disputes against employers. The cases may involve alleged violations of non-compete contracts, breach of fiduciary duty, misappropriation of trade secrets, etc. One of the first things we tell new clients is not to destroy or delete existing emails (whether on the employer’s server or the employee’s home or spouses’s computer). The second thing we tell them is to never create and send emails they would not want to see be used against them in court.
Deleted emails can often be retrieved by forensic computer experts…it is truly amazing what they can do. If the email was detrimental to our client’s position in the case, you can just imagine the damage such retrieved emails can have to the litigation. If the emails have been destroyed beyond the ability of an expert to retrieve, the law may allow a judge or jury to “presume” the email you deleted or destroyed is damaging to your case and your position in the litigation. Either way the employee loses.
What about emails clients send after retaining a lawyer? Unless they are sent to the lawyer and thereby protected as attorney-client communications, they can be discovered by your employer/opponent to shoot holes in your case. Don’t think that just because you sent an email to your best friend from college, who works for another employer in another state, that the email will not be discovered and used against you in your dispute with your employer.
My Take: We all love and use email but be aware of its potential deadly use.