Making a record: important warning about e-mails

Just read this excerpt in the January 26, 2015 New Yorker, by the exemplary Jill Lepore (the article is called “The Cobweb: Can the internet be archived?”) It amplifies things I’ve said about retaining e-mails (and this one, about smoking guns found in e-mails) if you think you might be facing a lawsuit, and offers a particular warning about that retention. I.e., print it out immediately and retain that hard copy.

So this is a Pay Attention! notice. And lawyers, as well as potential or current plaintiffs, should pay attention, too:

For the law and for the courts, link rot [when you visit a Web page and you get an error message: “Page Not Found”] and content drift [when the page you’re attempting to get into has been moved and something else is where it used to be], which are collectively known as “reference rot,” have been disastrous. In providing evidence, legal scholar, lawyers, and judges often cite Web pages in their footnotes; they expect that evidence to remain where they found it as their proof, the way that evidence on paper–in court records and books and law journals–remains where they found it, in libraries and courthouses. But a 2013 survey of law- and policy-related publications found that, at the end of six years, nearly fifty per cent of the URLs cited in those publications no longer worked. According to a 2014 study conducted at Harvard Law School, “more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs within United States Supreme Court opinions, do not link to the originally cited information.

Citing a Web page as the source for something you know–using a URL as evidence–is ubiquitous. Many people find themselves doing it three or four times before breakfast and five times more before lunch. What happens when your evidence vanishes by dinnertime?


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