From Texas REALTOR® April 2016 magazine issue…
The "e" in email may not only stand for electronic, but also evidence. That’s why your emails—and other electronic communications like text messages—are the top target of lawyers in real estate litigation. Can lawyers get your emails and text messages? Absolutely. It is not uncommon for lawyers to seek, through the discovery process of a lawsuit, all emails and text messages between the buyers’ and sellers’ REALTORS® or a REALTOR® and his or her client. There is no REALTOR® -client privilege in Texas to hinder or prevent the full and free discovery of your emails and texts. Emails and texts are fair game.
The value of texts and emails in a lawsuit
Lawyers in real estate litigation target the emails of REALTORS® because they are sometimes written carelessly and in haste. Emails and texts also provide evidence of representations made during the course of a transaction, or the parties’ understanding of the agreement. Emails are often used by lawyers to show lapses or omissions in the REALTOR® ’s duty of care to his or her client. Emails can either significantly help or significantly hurt the defense of a case.
A well-prepared email that says, “This email will memorialize the fact that I recommended that you obtain a foundation inspection” is a prime example of the proper use of emails. An email stating, “You probably don’t need to give the buyer a copy of that previous inspection report” will likely cause your attorney to regret his decision to take your case. Here is an example of a bad text message: “I am at the inspection. The air conditioner works perfectly!”
How lawyers will use your texts and emails
We often think of emails and texts as lesser forms of communications, i.e., the proverbial ugly stepsister of formal letters and facsimiles. In the view of most courts, though, emails and texts are given as much weight and importance as a formal letter. In fact, there are 4,105 published Texas cases that reference the use of emails as credible evidence. Judges and lawyers like emails as evidence because emails have electronic metadata associated with them providing a rich collection of hidden and technical information about the drafting, alteration, timing, sending, receipt, and even blind copy recipients of the email.
On a more obvious level, emails have a time stamp, which helps link the communication to relevant events in the real estate transaction such as the option period, the feasibility period, or closing. If there are 100 items on a trial exhibit list, 50 to 60 of them will likely be emails.
Before you delete your texts and emails ...
Hitting the delete key on your computer or smartphone is not a smart decision. Under Texas law, courts can give a spoliation instruction when a witness intentionally deletes or discards key evidence. When a court gives a jury a spoliation instruction, the judge tells the jury who the last person was to have possession or access to the key piece of evidence, which is now missing. The judge instructs the jury it is free to infer that because the evidence is now missing that the evidence was likely unfavorable. This is how you can tell things are not going well in court! This is also a good reason why companies develop document retention policies to retain key documents.
Lawyers and courts generally view text messages and emails as reliable evidence. Court decisions involving text messages as evidence often show little difficulty in authenticating this evidence through phone company records. Think carefully before you press the send key, and proofread your texts and emails. Ask yourself: If this message was on a trial exhibit list, would it be good or bad evidence of the way I am handling this transaction? May the "e" in email stand for exoneration in your case.