Michael Marron


This Comment will argue that the discovery rules presently require disclosure of an unacceptable amount of information. Part II of this Comment will outline some of e-mail's advantages over other communications media to help explain the rapid rise in e-mail use. Part III will then explain, in layman's terms, how e-mail actually works and discuss some of the reasons why e-mail archives are often considered as likely to contain “smoking gun” messages—the kind of evidence that can drastically affect the outcome of a case. But what is it about e-mail that can make it such a potent evidentiary weapon? The answer lies in the combination of three factors discussed in more detail later in this Comment. First, a vast number of e-mails can be stored at a relatively low cost. Second, contrary to popular belief, an e-mail is extremely difficult to delete and often lingers in a later discoverable form. Finally, e-mail users tend to adopt a casual tone, using e-mail more like the telephone than a letter.