“Email evidence has become a routine linchpin of white-collar criminal prosecution, because everything anyone has ever thought is likely to be contained in email.
Not for long. Savor Don Jr.’s thread; this is email’s last hurrah.”
—New York Times writer Farhad Manjoo on the publication of Donald Trump Jr.’s email chain in which he expressed interest in learning more about alleged Russian dirt on Hilary Clinton
When one of my colleagues came across Farhad Manjoo’s “What We Lose When the World Moves On From Email,” the article from which the above is quoted, he started an email chain of his own to discuss it, and I don’t think starting email chains is about to end any time soon.
Much like former National Security Adviser Michael Flynn’s assertion that it’s impossible to review 650,000 emails in eight days, the “unprecedented” technology threats to democracy leading up to the 2016 US presidential race, and high-profile imbroglios of presidential candidates and NFL quarterbacks, arguments about electronic evidence naturally capture the attention of e-discovery professionals like those in the Relativity community, who use software every day to discover the truth.
Manjoo’s article is worth a read as testimony to the tragic hubris (or ignorance, depending on your perspective) of the connected and powerful. What struck us about it is the assertion that the recent revelation of Donald Trump Jr.’s emails “may serve as the final nail in the coffin of email as the universal office communicator.” On that point, we respectfully disagree.
Here are a few reasons why it's too soon to pronounce the death of email—and if it were to die, why public transparency wouldn't be buried with it.
1. Enron didn’t stop anyone.
If the previous controversies surrounding individuals like Hilary Clinton and Tom Brady aren’t enough, we need only remember that other scandal referenced in Manjoo’s article and brought to light in 2001—the one that led to the bankruptcy of a major American energy company—to rest assured that, despite 16 years of technological innovation, the world is still saying incriminating stuff over email. In fact, the data set of Enron emails and documents continues to be a favorite benchmark for seeing what you can achieve with e-discovery software and an investigative mindset.
2. Email continues to make up the majority of data sets collected for litigation and investigations.
Document reviewers and other litigation support professionals see it every day. The Radicati Group estimates the number of emails sent per day in 2017 will be around 269 billion—it was 205 billion in 2015. A Harris Poll survey recently commissioned by kCura revealed how an increase in seniority, authority, and influence makes someone that much more likely to do silly, storage-clogging things over email. It’s also easily discoverable, and even the most complicated email threads are easier than ever to unwind.
3. Email is convenient, ubiquitous, and universal.
In addition to the astronomical investment organizations have made in email infrastructure, the inertia around the move from email to more private and secure methods of communication is, as Manjoo points out, largely due to email’s “asynchronicity.” It’s also a byproduct of its universality—email messages don’t hit the same walls that communications in proprietary protocols do. Everyone has an app for it.
4. Other electronic communications are just as discoverable.
Even as, as Manjoo points out, “[p]eople in business and politics are already moving on to other methods, from cloud-based business tools like Slack to apps like Signal,” the Relativity community is right behind them, creating platform connections and integrations to anything that leaves a trail of data. Despite the possible gains in privacy, a subpoena is a subpoena, and a FOIA request a FOIA request. Every day it gets easier to organize and produce the information requested, no matter the format.
5. Even if a sensitive conversation goes off electronic record, there will be electronic records.
Mountains of data, from cell towers to electronic stock trades, can become witness to the truth. Even data from devices connected to the Internet of Things are now helping the legal community in criminal and civil litigation. Journalists, lawyers, and technologists will continue to keep up and make savvy requests for information to support their stories. Actual words may be less important when you can triangulate the truth from a preponderance of circumstantial evidence. And we won’t even get into the topic of wiretapping …
Political and popular scandals will continue to raise the attention—and the profile—of the e-discovery profession. Let's rest assured of that and, regardless of our viewpoints and persuasions, continue to savor these moments if that’s what motivates us. If anything, it keeps us busy.
