Legalese: Electronic records
By Deryk Coward
Most of you realize the importance of keeping important written documents. In the electronic age, though, it is equally important to maintain and safeguard your electronic documents. When you are involved in a dispute with another party, whether it be in court or outside of court (such as a complaints process, industry hearing, mediation or arbitration, for example), your electronic records may be vital to the outcome of dispute.
By Deryk Coward
Copies of texts and e-mails are regularly admissible in court (and other tribunals) as evidence. This can be used to your advantage, or against you, depending on your practices. If you keep track of your electronic documents in an organized fashion, they will be readily available to you and could possibly help save your business thousands of dollars.
I recently was involved in a court case where the other party claimed to have text messages that supported their position. Unfortunately for them, they had since switched cell phones and never took the time to print their text messages for posterity. Our client won.
My current practice with e-mails is to regularly print out anything to do with a particular file and place it on the physical file. I know that other lawyers copy their assistant with every single work email sent, and the assistant places the e-mail on the file. You would be well served to print out as many emails as possible, and place on your respective files.
Text messaging is the norm these days. Not many of you print out your texts, I am sure. I see printed text messages every day in my practice, in the context of formal disputes. To the extent you do not print and/or preserve your text messages, you are risking being at a disadvantage later in a dispute.
At minimum, you should always ensure that if you needed to print your e-mails or texts, you would be able to do so. As a practical tip, if you haven’t done so already you should charge your I.T. person(s) with the responsibility of backing up your information so that it is available if and when you need it. If you do not have an I.T. professional, then appoint someone within your organization who is knowledgeable about these matters to help you out.
Just as important as the maintenance of electronic records, if not more important, are the content of electronic records themselves. You can use electronic records to support and enhance your position, and to clarify your rights and obligations. You can use the power of electronic records to confirm arrangements which are beneficial to you. An example would be a customer who tells you that there’s no issue with your invoice and that they are going to pay your invoice in full, within a week. You should follow that up with a text or e-mail saying, “Thank you for your advice today that there is no problem with our Invoice and that you’ll pay it in full within a week.” Later, if your customer were to fail to pay you and you took them to court, it would be that much more difficult for them to convincingly argue that they shouldn’t have to pay you.
Text messaging makes this very easy. Let’s say your supplier promises you an overdue delivery by the end of the week. You could send him or her a quick text message saying, “Thanks for promising to deliver by end of week.” It does not need to be overly cumbersome or complex. But, if they fail to deliver you will have a record of the fact they failed to meet their own promise.
More often that not, just being able to demonstrate to the person (or perhaps their superior) who failed to deliver your product will be enough to get you what you want. That may be faster delivery in the future, a discount from a future Invoice, or both.
Nothing in this article should be considered legal advice. If you have a question about electronic records and their many legal uses and consequences, please consult with a lawyer who is entitled to practice law in your local jurisdiction.