This guide is based on UK law. It was last updated in September 2008.
These issues include taking steps to enhance the reliability of email evidence, to manage the storage of email effectively and to have appropriate controls in place regarding its use.
Admissibility and reliability
E-mail is a form of documentary evidence and can be admitted as evidence in court in the same way as can other forms of documentary evidence. However, as with other forms of evidence, the reliability of e-mail evidence will be subject to scrutiny. This can be a particular issue in the context of e-mail or other electronic evidence, since measures which may protect the integrity and/or authenticity of electronic evidence (such as the use of digital signatures or other forms of encryption) are not always used. As a result, the reliability of e-mail as evidence may be subject to attack.
Organisations can however take steps that will potentially enhance the reliability of e-mail as evidence. One way of doing this is to demonstrate that e-mail has been created, compiled and stored in accordance with good industry practice. In particular, compliance with the BSI 'Code of Practice for Legal Admissibility and Evidential Weight of Information Stored Electronically' (the Code) will be relevant. The Code provides a framework that can be used to assess the reliability of evidence stored electronically. Compliance with the Code does not automatically mean that electronically stored documents will be regarded as reliable, but it is likely to strengthen any claim of reliability. Equally a failure to comply with the Code could leave a party open to the suggestion that e-mail evidence is unreliable.
However it should be recognised that, just as e-mail can be used to support a case, it can also be used to undermine it. This is important because prior to court proceedings taking place organisations may be required to disclose relevant e-mails to the other party to the dispute. This can cause problems because of the way in which e-mail is used. E-mail is something of an informal medium, and individuals may often write things in an e-mail that they would not include in a standard letter or memo. For example, individuals may send e-mails to each other discussing problems with a project and may make admissions of fault that they would not have made had they been aware that such e-mails could be disclosed to the other party. Policies regulating the use of e-mail are therefore important. In addition, organisations can in some cases rely on particular legal rules to avoid the need to disclose e-mails in particular cases. However the rules in this area are complex and legal advice will be needed to confirm their application.
The requirement to disclose e-mail also means that organisations should have appropriate systems in place to manage and store e-mails. Unless this is the case then problems may arise if (for example) e-mails have been deleted or if there is no adequate e-mail archiving process in place.
Given the above issues, there are a number of practical steps that organisations should consider taking in relation to e-mail, including the following:
- taking steps to enhance the reliability of e-mail as court evidence, through the use of systems to manage e-mail that comply with good industry practice;
- putting in place internal procedures to control the use of e-mail, to avoid damaging disclosures being made;
- having regard to legal rules which may enable the disclosure of e-mails to the other party to be limited; and
- implementing measures to simplify the process of disclosing e-mails to the other party where disclosure is required.
By taking the above steps, organisations should be able to rely on e-mail as evidence and handle e-mail effectively during the course of disputes.