Email as court evidence
This guide is based on UK law. It was last updated in
September 2008.
Email may be admitted as evidence in court proceedings so
organisations need to consider the practical issues this raises.
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.
Disclosure
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.
Practical steps
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.
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