It is not exactly news that the majority of business communications today are handled electronically by email. However, in the context of litigation, this can add new complications and twists to an age-old problem: How to obtain evidence from an opposing party who is motivated to avoid producing communications and willing to disregard their obligations under the relevant rules.

Under evidentiary rules, there are consequences when a party fails to preserve evidence, intentionally destroys it or otherwise does not produce it. Even before an action is filed, a spoliation notice must be sent directing the other party (or a non-party witness who may have important evidence) to preserve any evidence. Even where no notice is sent, the duty is also triggered if a party has reason to know of a potential action. In either case, the party has the obligation, not only to affirmatively refrain from destroying evidence, but also to discontinue any automatic deletion procedures.

The consequences for failure to preserve evidence can be significant. For example, the jury can be instructed to draw an adverse inference – that is, they can infer that the information which was not preserved would be adverse to the party who failed to preserve it. The judge can also sanction a party who destroyed evidence by precluding or even dismissing the party’s complaint/answer.

However, these consequences can be a hollow victory. Both federal and New York state courts have restricted the most severe sanctions to cases where evidence was destroyed intentionally and where the party seeking the email production has no other way to prove their case.

Rather than relying on possible sanctions that the Court may be reluctant to impose, a litigant is better served by seeking other methods of obtaining the withheld data. When it comes to certain electronic communications, including emails, one option is to issue a subpoena directly to the email provider. However, this is not easy. The Stored Communications Act greatly restricts production of email correspondence from an email provider’s servers in a civil matter and requires the consent of the email account holder (or a recipient of the email).

But why would a person who has already refused to produce email communications consent to their email provider disclosing them? On their own, they most likely won’t. However, if you can persuade a Court, whether by deposition testimony or otherwise, that communications exist and have not been disclosed, you can obtain an order from the Court compelling a party to consent to the subpoena. The validity of just such a compelled consent was accepted by the California Court of Appeals in the 2014 decision Negro v. Superior Court. The decision is particularly important as many of the email providers are headquartered in California.

Greater complications arise in obtaining discovery of other electronic communications (text messages, Skype records, etc.) given the limited time period such data is retained and because some service providers are located in foreign jurisdictions with more protective laws. As more evidence comes to exist only in electronic form, it is important for litigators to use every tactic available to clear these hurdles.

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This post does not constitute legal advice or establish an attorney-client relationship.