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Hey, Sony—the 'e' in email stands for evidence

Sony Pictures got hacked. Private emails are now public. Reputations have been sullied. But the court in which these emails end up having the most significant consequences is the court of public opinion or in privately held evaluations.

Those emails are evidence of something – attitudes, personal data, negotiating tactics – but that doesn't mean they are admissible evidence that may be used to reach a conclusion about the writers' or company's liability.

Angelina Jolie
Anthony Harvey | Getty Images
Angelina Jolie

Lawyers conventionally caution their clients that the "e" in email stands for "evidence." That caution frequently comes after series of emails has resulted in some legal claim against the client. That after-the-fact caution is akin to the familiar occurrence of someone being told to watch their step after they have tripped over an unnoticed impediment. "Now you tell me."

But how such emails have been obtained may affect the kinds of consequences that may carry.

At the very least, controversial emails or other communications from high-profile or powerful people that are disclosed publicly — no matter how they are obtained — are considered in the court of public opinion where no rules of admissibility apply. Anything goes. The public verdict can have career-altering consequences. (See, for example, Sterling, Donald.)

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And yet emails received in the rule-free court of public opinion may not be admissible in a court of law, where strict rules of admissibility apply. Sony appears to have conceded the authenticity, or genuineness, of the substance of the emails. That still leaves a wide range of other rules, such as hearsay and relevance, that may keep evidence of such emails out.

Actors James Franco (L) and Seth Rogen attend the Premiere of Columbia Pictures' 'The Interview' at The Theatre at Ace Hotel Downtown Los Angeles.
Kevin Winter | Getty Images
Actors James Franco (L) and Seth Rogen attend the Premiere of Columbia Pictures' 'The Interview' at The Theatre at Ace Hotel Downtown Los Angeles.

Sony may have an even stronger shield against use of the emails in legal proceedings than item-by-item objections. "Fruit of the poisonous tree," that is evidence obtained unlawfully as here, is generally excluded in legal proceedings. The most widely known application of that rule is the exclusion of evidence that law enforcement officials obtained in violation of a criminal suspect's constitutional rights. That same exclusionary rule may apply to consideration of these hacked emails. So, say, stars seeking to break their contracts because of what is said in those emails may be unable to use the emails to invalidate their contracts.

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Sony and the person asserting a claim based on the emails may have a contract that requires any dispute to be resolved through private arbitration. If a particular legal dispute goes to private arbitration instead of being aired in state or federal court, yet a third set of rules may apply. The rules of evidence that apply in an arbitration fall somewhere between the anything goes "rules" that apply in the court of public opinion and the rules of evidence that apply in court which limit what comes in, generally speaking, to the kind of evidence experience has shown is trustworthy. If a particular set of emails is especially relevant to the particular legal claim before the arbitrator, the uncertainty of whether such evidence will be considered may drive both parties to settle.

Maybe at the end of the day these emails will have the most significant impact on individual dealings with the people who wrote them, even in matters that have not yet registered with the broader public and even in matters will never be considered in court. The emails provide unfiltered insight into attitudes, tactics, priorities.

But it is wrong to say that such emails represent the only indication of such things. A snapshot is not a movie any more than a misdirected throw is an entire football game or the sum total of a quarterback's career. There's more to be sure.

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And yet emails that were never intended to be public unavoidably will have consequences, most of which will never be tested in a court of law or arbitration and some of which may never be aired at all, such as the unreturned call or, ironically, the unanswered email. It is the consequences that have no appeal that may cause the most lasting harm. The "e" in email stands for "evidence."

Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.