Will my sexy emails become public in a lawsuit?

September 8, 2011 11:42 AM

I may be sued for something related to a business partner relationship gone wrong. I have some very private (unrelated) email that I do not want to become public. What should I do?

I am writing this anonymously to protect myself legally, and also because this *former* business partner reads this forum.

I am about to end a business relationship with someone who is unethical and very difficult to deal with. Because he comes from a very wealthy family and has a strong vindictive streak, he may attempt to sue me if I pursue my business interests further without him.

I have talked to a lawyer and I am not in the wrong, but he could definitely file a suit and harass me. I'm not wealthy and would have trouble defending myself. I haven't asked the lawyer about this because he is a family friend and I don't want to discuss the private parts of this with him.

I have some email in another account that relates to some private sexual interests of mine. Nothing illegal, but definitely not something I want made publicly known (mostly BDSM stuff).

I have accessed this email account from the same IP address as my regular email, many, many times. Both of these accounts are gmail accounts. I have sent emails to him from my regular account regarding business matters, so I can see how he might want to subpoena that account.

I have a few questions relating to this:

- He can subpoena my regular account, right?
- Can he subpoena another account that I access from the same IP address even though it is unrelated?
- Could these emails become public if there is a lawsuit?
- If I delete both accounts, and stop using gmail, how long will it be before I no longer have to fear that the content will be around to haunt me?
- Should I delete both accounts, or just the private email account? Or just my regular one? Or neither? It would be a bit of a hassle to reroute all of my email, but worth it to prevent this stuff from becoming public.

I'm not trying to hide anything with relation to the business, as I think that I'm on pretty solid ground there. I don't think he'd win a case. I just don't want my private emails to become public record.

This is in the United States and we are both US citizens, if that makes any difference.

posted by anonymous to Computers & Internet (24 answers total)

Do not destroy anything. Whatever's out there is out there and you should leave it that way. If you trash anything now it looks really really bad.

They don't get to sift through your entire life on account of a lawsuit. If the only connection between your personal email account and your business matters is an IP address, they'll never get anywhere near it. Even when they go after your business account, it'll be limited to the relevant correspondence.

IANAL, but I've had my email subpoenaed.
posted by Nahum Tate at 11:52 AM on September 8, 2011 [2 favorites]

You must discuss this with your attorney. I am not your attorney and this is not legal advice.
posted by Ironmouth at 11:52 AM on September 8, 2011 [6 favorites]

If your partner reads this forum, you've kind of blown it already haven't you? The details you provide (albeit anonymously) are pretty recognizable. What you're contemplating by deleting the accounts is "spoliation of evidence" and it can cause the lawsuit to go very badly for you, leading to various court sanctions including default judgment against you.
posted by jayder at 11:55 AM on September 8, 2011 [1 favorite]

Some parts of this may be relevant, re: IP addresses used to ID someone.
posted by Lynsey at 12:00 PM on September 8, 2011

I'm not a lawyer and I don't know much.

Please do not take legal advice from someone who starts an answer with this preamble.

I would talk to lawyer friend again.
posted by craven_morhead at 12:14 PM on September 8, 2011 [5 favorites]

I'm not a lawyer and I don't know much. However, you can delete your Gmail as much as you care to prior to being subpoenaed--only if you were served then you would be wrong for destroying potential evidence.

You're not a lawyer, you don't know much, and what you wrote here is absolutely, 100% wrong. IAAL. IANYL. Talk to YL friend again.
posted by The Bellman at 12:16 PM on September 8, 2011 [9 favorites]

I'd be curious to learn how deleting irrelevant emails in an unrelated email account prior to being sued could be problematic, since it's something most of us do every day and any of us could be sued at anytime.

I am not a lawyer. I am not your lawyer. This is not legal advice. But I will happily bill you for it.
posted by BurntHombre at 12:20 PM on September 8, 2011 [3 favorites]

No it's not.
posted by elektrotechnicus at 12:23 PM on September 8, 2011 [2 favorites]

Don't assume a deleted email is either a) really deleted or b) not in someone else's inbox, undeleted. Don't assume a personal webmail account can't be touched by a legal action involving a business. Don't assume any activity that seems innocent to you will appear that way to someone else. Don't assume you can do anything without first talking to a lawyer.
posted by tommasz at 12:25 PM on September 8, 2011

Horselover: You want to look at Zubulake and its progeny about the duty to preserve ESI when you know there is a possibility of litigation, but it has not yet been filed. This is not legal advice and may well be entirely irrelevant to the OP, but the preservation obligation does not arise with the filing of the suit. It arises long before that.
posted by The Bellman at 12:29 PM on September 8, 2011 [2 favorites]

Your family friend lawyer is a family friend precisely because he or she can keep personal shit secret, thus enabling the family to work in concert on legal matters.

Ask the lawyer.
posted by By The Grace of God at 12:30 PM on September 8, 2011 [1 favorite]

If I delete both accounts, and stop using gmail, how long will it be before I no longer have to fear that the content will be around to haunt me?

As others have said you should talk to your lawyer about this because it may end up affecting the case even if the other account is unrelated. Anyway to answer your question, Google states that it can take up to 60 days for deleted accounts and emails to be fully purged from their servers, and that their (offline) backups may contain the data for longer.
posted by burnmp3s at 12:31 PM on September 8, 2011

Your lawyer will tell you to delete this posting, so why not just save 15 minutes of that part of your consultation and do it now.
posted by RJ Reynolds at 12:44 PM on September 8, 2011 [2 favorites]

Destroying stuff you suspect will be subpoenaed may or may not get you nailed with destruction of evidence but it most certainly is not a completely free action.

From the EFF, who knows stuff about stuff:(emphasis mine)

Do not destroy evidence. You should never destroy anything after it has been subpoenaed or if you have reason to believe you are under investigation and it is about to be subpoenaed — destruction of evidence and obstruction of justice are serious crimes that carry steep fines and possible jail time, even if you didn’t do the original crime. Nor should you selectively destroy documents — for example, destroying some intake files or emails but not others — unless it’s part of your policy. Otherwise, it may look like you were trying to hide evidence, and again might make you vulnerable to criminal charges. Just stick to your policy.

Besides, you pressing a delete key doesn't mean Google deletes it or doesn't have records they can retrieve. It might be even WORSE for you if Google doesn't retain the data but they're able to produce evidence that you deleted an account full of SOMETHING. Then it's only you saying it was irrelevant. And why would you, the person being sued, lie about deleting something relevant?

You need a lawyer. Go pay for an hour of someone's time so they are your lawyer and your privacy is protected.
posted by phearlez at 12:50 PM on September 8, 2011 [1 favorite]

I am SO NOT A LAWYER and your lawyer should be dealing with this. However, I have unfortunately seen the email discovery process play out several times in big civil suits with expensive experienced lawyers over the past few years. Again, I speak from personal observation only!

In every case I saw, the emails requested were ones that contained key words, were between specific people, or related to specific issues. IP address did not matter at all except to demonstrate stuff like where the defendants were when they sent emails. However, email address didn't matter either - the requests were for all emails sent relating to x, not for all emails from such-and-such account. There was then a very lengthy process of wrangling over what got sent and what didn't, where the plaintiff had to demonstrate what was relevant, and sections of what were ultimately sent were also redacted. The cases I saw were extremely "harassment oriented" but the people pushing for emails were mostly only able to use the expense of legal time spent finding and arguing over the emails as a weapon, and were mostly prevented from using email discovery as a drag-net for anything embarrassing or extra to the case that had been filed.

My absolutely lay and casual understanding is that in a civil case turning over entire personal accounts is extremely unusual and if your lawyer lets it happen they are not a great lawyer. My understanding also is that deleting things you believe may be relevant is probably illegal from the time you believe there may be a lawsuit, but that does not mean you cannot delete any of your emails at all.

If you can't talk frankly about this with your lawyer, you need a new lawyer. Good luck!
posted by crabintheocean at 12:55 PM on September 8, 2011 [3 favorites]

I think you should get legal advice from someone who's not a family friend, but is an actual attorney. Why would your 2nd email account be subpoenaed if the ex-partner never got mail from you from that account?
posted by Ideefixe at 1:12 PM on September 8, 2011

"I haven't asked the lawyer about this because he is a family friend and I don't want to discuss the private parts of this with him."

You need a second lawyer you're comfortable discussing this with.
posted by Marky at 1:22 PM on September 8, 2011 [1 favorite]

INYL, TINLA. You should generally not destroy anything which is evidence or has the potential to become evidence in a legal action. Only a lawyer familiar with the law in your area can tell you what exceptions might exist, and you should consult one before you do anything like that. You should also plan on people knowing about the destruction, or at least the attempt--since you don't control the servers, you'll never really know whether it's actually destroyed.

Secondly, if you are sued, you should get a lawyer. Your lawyer will have a number of tools he or she can use to defend whatever legal right you might have to keep irrelevant confidential material private. But I would not wait until then to get a lawyer. Negotiate a consultation fee with the family friend, or get a referral so you can come up with a game plan to manage your risk.
posted by Hylas at 1:27 PM on September 8, 2011

Do not destroy anything. My lawyer girlfriends in San Francisco and Silicon Valley routinely mention finding sensitive/sexy/personal e-mails in the process of doing documentation review and discovery for large tech cases.

A lawyer may read these e-mails, but these e-mails will not likely become part of the case so long as you're not writing sexy AND business content together.
posted by cior at 1:28 PM on September 8, 2011 [1 favorite]

I'm not a lawyer. I'm not your lawyer. I'm not your business partner's lawyer, for which you should feel supremely fortunate but not take as a sign that they're not reading this.

Get a lawyer you can trust and stop talking about this case or your business or your partner or pretty much anything online.
posted by SMPA at 1:52 PM on September 8, 2011 [1 favorite]

If someone unscrupulous wanted to hurt me, I'd make darn certain my passwords were changed to something very secure. Unscrupulous person may not ever think about your outside email account. Or, unscrupulous person may know your password, esp. if it's Ginger, and that's your dog's name.
posted by theora55 at 2:41 PM on September 8, 2011

I'm not a lawyer and I don't know much. However, you can delete your Gmail as much as you care to prior to being subpoenaed--only if you were served then you would be wrong for destroying potential evidence. Until then, you may delete any and all of your emails in your Gmail or non-work account. It's highly doubtful that your non-work accounts would be touched for any discovery of a civil lawsuit at any rate.

The poster advises the criminal destruction of potentially relevant evidence. Obtain the advice of a competent attorney in your jurisdiction. I am not your lawyer and this is not legal advice.
posted by Ironmouth at 2:50 PM on September 8, 2011

> You're not a lawyer, you don't know much, and what you wrote here is absolutely, 100% wrong. IAAL. IANYL. Talk to YL friend again.

Um, ok. But deleting personal emails from a webmail account PRIOR to any sort of legal action is a-ok

No it is not. If you believe there may be potential legal action, then you may not delete anything prior to that. OP under NO CIRCUMSTANCES follow this advice.
posted by Ironmouth at 2:51 PM on September 8, 2011

Don't delete, as a last resort your lawyer will fight to have these irrelevant sexy emails put before a judge without the other party's lawyer having seen them yet. The judge will look at them, declare them irrelevant, and order that they not be turned over to the other party. Deleting makes you look suspicious and that is never ever good.
posted by boobjob at 3:40 PM on September 8, 2011 [1 favorite]