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E-mails can be your best friend or worst enemy. New York courts have issued a series of decisions, since the beginning of the year, finding that e-mails, when specific enough, may set forth the terms of a writing sufficient to satisfy New York’s Statute of Frauds. E-mail service of a summons and complaint recently has been authorized under the CPLR where, among other things, prior communications between the parties had been electronic and plaintiff, after due diligence, had been unable to obtain a physical address of the defendant for purposes of service. Also, near to a litigator’s heart, are two new decisions requiring a nonparty law firm to be paid its own attorney’s fees for reviewing its e-mails in response to a subpoena. New York courts are continuing to take seriously spoliation of e-mails and the failure to preserve e-mails. Finally, text messages have been found to constitute criminal harassment. E-Mails May Satisfy Statute of Frauds In Stevens v. Publicis, S.A., 50 AD3d 253, 854 NYS2d 690 (1st Dept. 2008), the First Department recently held that a series of e-mails setting forth the terms of a proposed modification, together with an e-mail accepting the terms of the agreement and an immediate reply e-mail, memorialized the terms of the parties’ agreement to change an employment agreement. 1 The court found the e-mails constituted signed writings within the Statute of Frauds since “plaintiff’s name at the end of his e-mail signified his intent to authenticate [its] contents” and which e-mail satisfied the requirement of the employment agreement that any modification be signed by all parties. 2 In Al-Bawaba.com Inc. v. Nstein Technologies Corp, 19 Misc3d 1125(A), NYS2d, 2008 WL 1869751 (Sup. Ct., Kings County April 25, 2008), the court reasoned that the “note or memorandum required by the Statute of Frauds may be pieced together out of separate writings, some signed, and some unsigned ‘provided that they clearly refer to the same subject matter transaction,’” rejecting the claim, on a motion to dismiss, that an alleged oral three-year agreement violated the Statute of Frauds. 3 The court found evidence of a contractual agreement 4 between the parties that exceeded the threshold of “mere speculation” and, in denying the motion and permitting discovery, noted that additional documents may exist containing terms sufficient to satisfy the Statute of Frauds. 5 The court also held that the signature of the party on the e-mail constituted a “signed writing” under the Statute of Frauds and that the sender “manifested his intention to authenticate the e-mail” for the purposes of the Statute of Frauds by typing his name at the conclusion of the e-mail referencing the parties’ contractual agreement. 6 Finally, in Kim v. United Young Artist Foundation Inc., 19 Misc3d 133(A), NYS2d, 2008 WL 879747, at *1 (Sup. Ct., App. Term April 2, 2008), a recent Appellate Term decision held that “e-mail communications between the parties clearly and explicitly established the payment terms of the parties’ agreement.” 7 Summons and Complaint In Snyder v. Alternate Energy Inc., Misc3d, 857 NYS2d 442 (Civ. Ct., New York Co. April 4, 2008), the court noted that the CPLR empowers a court to devise alternative means of serving a summons where the plaintiff sufficiently demonstrates that service cannot be made by a statutorily prescribed method. The court, given the specific facts of the case, exercised such power by permitting plaintiff to serve defendants by e-mail. The court indicated that “cyber-notice” would need to be as reliable as the more conventional service of a “paper” summons and complaint. The court found that, while plaintiff’s extensive efforts to serve defendants proved unsuccessful, such attempts were sufficient for the court to consider service by e-mail. The court held that, for service by e-mail, it is not enough to merely show that a defendant has a computer and an e-mail address. Rather, it must be shown by the totality of the facts that a “court could readily conclude that service by e-mail is ‘reasonably calculated, under all the circumstances, to apprise the defendants of the action brought against them.’” 8 In this case, plaintiff demonstrated that defendant “is regularly online using an e-mail address that by all indications is his.” 9 The court discussed that, although service by publication has a low probability of actually notifying a defendant that an action is being brought against it, service by publication is an acceptable means of notification, and that, e-mail service, to the contrary, “offers a chance of providing actual notice to a defendant of a pending lawsuit.” 10 Therefore, after determining that “service by conventional means was impracticable and that the proposed form of alternative service was reasonably calculated to give the defendant notice of action,” 11 the court “to better ensure the effectiveness of . . . notice” ordered service as follows:
(1) e-mail service must be done on two consecutive dates; (2) the e-mail must bear a prominent subject line indicating that legal papers were being sent in an attachment and were to be opened immediately; (3) the summons and complaint must be mailed to defendants’ last known New York and Connecticut addresses; and (4) plaintiff was to contact defendant on his known cellular phone number and advise that the summons and complaint were being sent by e-mail and regular mail. 12
Party Pays for Nonparty’s Attorney’s Fees in Review of E-Mails. Recent decisions have held that a nonparty law firm is entitled to be paid for its own time in responding to a subpoena seeking documents. Fundamental in convincing a court to require payment of nonparty counsel fees is to well-document the costs and time involved in responding to the subpoena in order to distinguish the situation from the typical subpoena served upon a nonparty seeking documents maintained in “paper” form. In Finkelman v. Klaus, 17 Misc3d 1138(A), 856 N.Y.S.2d 23, 2007 WL 4303538 (Sup. Ct., Nassau County Nov. 28, 2007), the court required the subpoenaing party to pay a law firm for “the costs incurred in producing [its] e-mail records in order to procure their production,” which included its legal fees. 13 The court relied in part upon a memorandum from the Office of Court Administration in support of the 2003 amendment to CPLR §3122(d), which stated that a “nonparty can demand reimbursement of reasonable production expenses, mirroring CPLR 3111, and may withhold such production until the expenses are paid or the issue is otherwise resolved by the court.” 14 The court noted that nonparties should not have to subsidize the cost of litigation and found that “the costs of producing electronic records can be very steep”; it looked to federal precedent for guidance because “what constitutes reasonable production expenses has not been well defined by state courts.” 15 See Lotito v. Biden, Index No. 600045/07 (Sup. Ct., New York County, Transcript of Oral Argument, dated May 19, 2008) (court ordered that, pursuant to CPLR 3122(d), requesting party pay for nonparty’s attorneys’ production of e-mails as well as the attorneys’ time for gathering and reviewing them for, among other things, privilege). 16 Spoliation of E-Mails Courts take serious “spoliation” claims of electronically stored information. In Ingoglia v. Barnes & Noble College Booksellers Inc., 48 AD3d 636, 852 NYS2d 337 (2nd Dept. 2008), the Second Department recently held that spoliation had occurred where defendant’s expert found that between the date the defendant demanded inspection of plaintiff’s computer and the date of inspection, files, images, and folders as well as some history of plaintiff’s Internet usage had been deleted. Defendant’s expert found that, after the demand for inspection had been made, a “software program was installed which was designed to permanently remove data from the computer’s hard drive.” 17 The court held that such “intentional destruction” of “key evidence” “severely prejudiced” defendant and accordingly dismissed the case. 18 In Hunts Point Realty Corp. v. Pacifico, 16 Misc3d 1122(A), 847 NYS2d 902 (Table) (Sup. Ct., Nassau County July 24, 2007), in a decision after trial, the court awarded plaintiffs “counsel fees and costs for all work done by [it] related to [d]efendant’s failure to preserve e-mail” (citing De Espana v. American Bureau of Shipping, 2007 WL 1686327 at 8 (S.D.N.Y 2007) (awarding attorney’s fees and costs, under the Federal Rules of Procedure and the Federal Rules of Evidence, incurred by counsel in pursuing missing e-mails as part of electronic discovery). 19 The court found that defendant had “willfully and intentionally disobeyed an order of this Court directing him to preserve communications” and that defendant’s “unabashed flaunting of this Court’s preservation order resulted in additional work by Plaintiffs’ Counsel and the Court.” 20 Criminal Text Messaging The threatening nature and frequency of text messages can constitute criminal harassment. In People v. Limage, 19 Misc3d 395, 851 NYS2d 852 (Crim. Ct., Kings County Feb. 5, 2008), the court noted that while “unwanted speech which threatens, alarms, harasses, or annoys an individual may be proscribed without violation to the speaker’s right to free expression,” it concluded that “the allegation that the defendant sent the complainant six text messages in less than 17 hours, stating that the defendant was outside of the complainant’s residence and that she would end up in the hospital, if true, is not merely irritating or abusive, but threatening and would understandably cause the complainant to be fearful for her life.” 21 The court stated that just as “‘the owner or possessor of the telephone has the right to be free of unwanted telephone calls,’ that right can logically be extended to freedom of unwanted text messages received on that telephone” and that a “short text message can be even more vicious and threatening than a lengthy convoluted e-mail or letter.” 22 Conclusion Our state courts are issuing more and more decisions addressing electronic communications. Some courts view e-mails or other electronic messages as no different than letters or facsimiles, and others addressing the use of e-mails regard them as a completely different mode of communication to which the “old” rules regarding “paper” documents do not apply. An attorney needs to be cognizant of this dichotomy, since the law concerning e-mails is new and developing, and one can ever be sure how a court will address e-mail technology. Mark A. Berman, a partner at Ganfer & Shore, has extensive experience in securities and general commercial litigation. Endnotes: 1. 50 AD3d; 854 NYS2d at 692. 2. Id. 3. Id. at *2. 4. See Carrizzo v. Searchhelp Inc., Index No. 015330/2007, at *5 (Sup. Ct., Nassau County April 10, 2008) (e-mail support oral waiver of contract). 5. 2008 WL 1869751 at *3. 6. Id. at *2, *3. 7. In Vista Developers Corp. v. VFP Realty LLC, 17 Misc3d 914, 847 NYS2d 416 (Sup. Ct., Queens County Oct. 8, 2007), the court noted that contracts and conveyances of real property are legally different from other agreements. The court stated that the intent of the Statute of Frauds was to remove uncertainty, and to distinguish provisional “agreements to agree” from binding contracts in real estate sales. Id. at 921, 847 NYS2d at 421. Accordingly, the court dismissed the action as violative of GOL §5-703(2), which holds in relevant part: “[a] contract . . . for the sale, of any real property or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing.” 8. Id. at 448 (citation omitted). 9. Id. 10. Id. 11. Id. at 449. 12. Id. 13. Id. at *6 14. 2002, McKinney’s Session Laws of New York at 2153. 15. Id. at *6. 16. See In the Matter of the Application of John Maura, Jr. and Ronald Maura, 17 Misc3d 237, 842 N.Y.S.2d 851 (Sur. Ct., Nassau Co. June 28, 2007) discussed in M. Berman, “Scope Limits on E-Discovery Under Recent State Decisions,” NYLJ, Oct. 29, 2007. 17. 852 NYS2d at 338. 18. Id. 19. Id. at *9. 20. Id. at *2-3, *9. 21. 851 NYS2d at 855-56. 22. 851 NYS2d at 857 (citation omitted).

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