Are e-mails proof of anything?

[Princhester]

@Chronos

Of course, they’re also useful for proof if the only thing being disputed is your memory, not your integrity.

For all the technical answers given in this thread, this is the single most useful, practical, everyday comment. 99.9% of the time, integrity won’t be challenged and simply production of a copy of an email will do the job required. And I say that as a practicing (civil, not criminal) lawyer.

[Aji_de_Gallina]

Leaving (at work) your computer unattended with your e-mail program on and no need to for a password is gross negligence (even if common). My brother-in-law works for a company that has the following policy: Should the IT guys find your computer (laptops for all)unattended and not locked they would take it, as it is, to the manager’s office where you will have to explain WHY and HOW.
It’s like leaving a loaded gun, even if you didn’t shoot, you are responsible for something.

[Northern_Piper]

@Koxinga

I’d be interested to hear from legal types if the OP’s question has different answers in a civil vs. criminal proceeding.

Also, in criminal terms, would the act of going back to the server and altering an e-mail record constitute some kind of forgery, in and of itself? (I’m aware that if the act were carried out in anticipation of records being searched that some kind of “obstruction of justice” charge might apply.)

The rules for the admissibility of something into evidence are usually the same in civil and criminal proceedings, so the same general principles would apply to determine if an e-mail is admitted as evidence.

However, admissibility just means that the item is admitted into evidence before the court. The weight to be given to that piece of item is a matter for the finder of fact to determine, and is highly context specific.

What’s different is the standard of proof. In civil matters, it’s proof on the balance of probabilities; in criminal matters, it’s proof beyond a reasonable doubt. Given some of the issues about e-mail discussed in the thread so far, particularly the issue of who actually sent the e-mail from a particular computer or account, I could see an e-mail as not being sufficient to satisfy the onus of proof in a criminal case, but possibly being sufficient to do so in a civil case. However, that sort of issue is highly context specific to the facts of the particular case, and it would be difficult to generalise.

Forgery offences normally require that the change be made with the intent to defraud or obtain money improperly in some way, so merely changing info in a system likely wouldn’t count as forgery, even if the person doesn’t have authority to do so. But many jurisdictions now have laws about improperly tampering with electronic data which might apply. As always, your mileage may vary depending on your jurisdiction, and this is just meant as a general discussion of legal principles, not as specific legal advice.

[Mijin]

Thanks all for the responses, very interesting.
This is already one of the most successful threads I’ve started

I’m going to elaborate a little now on why the question came up:

I work for a company that among other things makes websites.
A client has asked us to set up a shopping area of a website in such a way that it strongly suggests that they are not paying their taxes.
My colleagues are reluctant to mention this to the Inland Revenue while they remain a paying client.

However, I was concerned that at a future time when they get found out, they will blame us, because we set up the website. To this, my colleagues were of the opinion that we have records of e-mails urging the client not to set up their website this way, and the implications. I wasn’t so sure that these e-mails would stand up in court!

It sounds like, we’re probably OK, but relying on the e-mails alone is risky and we should probably do more to protect ourselves.

FWIW I want to turn the guys in…
Firstly out of principle but secondly because they’ve been quite an abusive client.

[Rigamarole]

@Koxinga

I’d be interested to hear from legal types if the OP’s question has different answers in a civil vs. criminal proceeding.

Of course. I’m not a lawyer and don’t need to be one to know civil and criminal cases have always had a vastly different standard of proof, which is preponderance of the evidence vs. beyond a reasonable doubt. In a civil case if the judge has no reason to doubt the validity of a document after cross-examination then it can be taken as evidence without a lot of fuss. But if it’s a criminal case you better be damn sure those e-mails are legit.

[rbroome]

@msmith537

There is a difference between showing a client a CYA email to prove you did what you said and a forensically collected email provided for discovery.

I’m sort of an expert on this stuff. I worked for years in a consulting firm that specializes in computer forensics, electronic discovery, litigation consulting and related services. Now I work on a team in a Fortune 500 company that advises the legal department on those same issues.

Basically, emails and other electronic files are considered evidence and are often provided during the discovery process of a legal proceeding or other investigation.

Your email generally resides on a server somewhere. It may also reside on old backups of that server or in a dedicated archiving system specifically designed to retain email (i.e. Zantaz is a popular tool), even if you delete it. Even if it didn’t, forensic experts can collect local email from the sender and the recipient. We can use tools to capture an exact copy of your hard drive and thus maintain proper chain of custody in that they can prove the files they have are the same as when they collected them from you. When an analysis is performed, we can see that the emails don’t match or that metadata (ie modified date, modified by) has been changed when the email was edited.

It’s pretty big business actually.

Thanks!
always nice, and fortunately frequently it happens on the Dope, to have someone with expertise in the subject chime in.

[rbroome]

@ftg

This is why everybody should be signing their emails using PGP. But of course, very few people do. Why businesses don’t require PGP is beyond me.

What I find so amusing about discussions regarding chain of control of emails and electronic documents, spoofing and PGP etc. is the vast qualitative and quantitative difference between electronic and paper or other traditional methods and standards.

In the “old” days, if a lawyer came in to an office on discovery and found a paper memo in the file, that was clear evidence. The date of the memo and the signature was assumed to be accurate. Challangable, but assumed to be accurate. There was no thought of securing records, special stamps, etc to maintain the security of paper copies. When we treat electronic documents (emails) in a similar way, that is irresponsible and dangerous.

[Swallowed_My_Cellphone]

@rbroome

In the “old” days, if a lawyer came in to an office on discovery and found a paper memo in the file, that was clear evidence. The date of the memo and the signature was assumed to be accurate. Challangable, but assumed to be accurate. There was no thought of securing records, special stamps, etc to maintain the security of paper copies. When we treat electronic documents (emails) in a similar way, that is irresponsible and dangerous.

Well actually for Really Important Stuff there are special stamps etc., such as when you have to take a document to be certified by a notary. Heck, the first time I registered to vote from abroad I had to get my documents stamped and signed by Mr. Official Fancypants.

Otherwise, the original signature was considered as the means of authenticating the paper document, since on the stand you could ask the person under oath “Is this your signature? Did you sign this?”

[msmith537]

@rbroome

In the “old” days, if a lawyer came in to an office on discovery and found a paper memo in the file, that was clear evidence. The date of the memo and the signature was assumed to be accurate. Challangable, but assumed to be accurate. There was no thought of securing records, special stamps, etc to maintain the security of paper copies. When we treat electronic documents (emails) in a similar way, that is irresponsible and dangerous.

The difference is that you can create multiple exact duplicates of an electronic file. You can, if you know what you are doing, also modify electronic files in such a way that no one would know they had been tampered with. It’s a lot harder to do that with paper documents.

@Mijin

I work for a company that among other things makes websites.
A client has asked us to set up a shopping area of a website in such a way that it strongly suggests that they are not paying their taxes.
My colleagues are reluctant to mention this to the Inland Revenue while they remain a paying client.

However, I was concerned that at a future time when they get found out, they will blame us, because we set up the website. To this, my colleagues were of the opinion that we have records of e-mails urging the client not to set up their website this way, and the implications. I wasn’t so sure that these e-mails would stand up in court!

It sounds like, we’re probably OK, but relying on the e-mails alone is risky and we should probably do more to protect ourselves.

Well, obviously you would want to check with legal. But you might want to do a bit more than simply rely on a few emails urging them not to set up the web site that way. Maybe something along the lines of an actual signed statement of work saying that you will set it up as requested, however, the company will have to be responsible for paying their own tax obligations.