A business entity’s business records can be discoverable in lawsuits. When employees or board members of a business entity are using their personal email accounts like gmail, yahoo, etc. to conduct business, those personal email accounts are fair game when it comes to discovery.  The complication is that business emails are now mixed with personal emails in those accounts and an adversary could be allowed access to both the business and personal emails.  How embarrassing would that be?

This issue just came up in a lawsuit between Exxon Mobil and the State of New York. Manhattan State Supreme Court Justice Barry Ostrager is presiding over the lawsuit in which Exxon Mobil has accused the Attorney General’s Office of official misconduct and acting with a conflict of interest.

Exxon Mobil has alleged that Schneiderman, while in office, used his personal email account to conduct official business related to his office’s investigation of the company. Exxon Mobil had obtained a series of communications relevant to the litigation through discovery that Schneiderman had forwarded to his government account from his personal email.  Based on that finding, the company went for the jugular, demanding broader access to Schneiderman’s personal email account to support their claim of official misconduct on his part.

The company suggested in recent filings that there may be additional communications on Schneiderman’s personal email account that he chose not to forward and preserve. Those communications could have shown he was influenced by environmental activists to trigger an investigation and bring litigation against the company.

The Court ruled that, instead of unfettered access to Schneiderman’s account, Exxon Mobil would be provided with a signed declaration from Schneiderman certifying that anything relevant on the account was made available to them through discovery.

What a mess created by Schneiderman using a personal email account instead of just his office’s business email account.  

The Court’s resolution of the discoverability issue, for the moment, does not change the fact that business email in personal email accounts is not shielded from discovery.  Schneiderman has to provide a sworn declaration certifying that relevant emails in his personal account were all turned over.  Exxon Mobil could appeal the decision and continue arguing for access to the entire personal email account to make its own assessment of what is relevant rather than relay on a declaration by its adversary in a contentious litigation.  We’ll have to wait and see.

This serves a warning to businesses and their employees and board members.  If you allow employees or board members to use personal email accounts to conduct business, those emails are discoverable and will expose the entire email account (both personal and business emails) to discovery.