E-mail headers can help determine the identity of an
anonymous e-mailer. This can be critical in various types of
litigation, including defamation and tortious interference cases,
as well as in cases in which a person is utilizing an e-mail
address "confusingly" similar to a company's address.
By Mark A. Berman
and Aaron Zerykier|April 24, 2006 at 12:00 AM|Originally published on National Law Journal
Thank you for sharing!
Your article was successfully shared with the contacts you provided.
A benefit of having e-mails produced in electronic form is that it permits a litigator to follow the “information trail” contained in the embedded “header” of an e-mail that would otherwise be unavailable from the printed copy of the e-mail. For example, to view header information in Microsoft Outlook, a user clicks on View and then selects Options. See Mark A. Berman and Aaron Zerykier, “Forensic Inspection of Computer Hard Drives Under New York Law,” Sept. 1, 2005, N.Y.L.J., and “Are Private E-Mails Really Private?,” N.Y.L.J., Oct. 7, 2005. This “header” information may be used to identify the Internet account from which the e-mail was sent because the header often includes the Internet protocol (IP) address assigned to the user who sent the e-mail. Determining the identity of the unknown or anonymous person who sent a specific e-mail can be critical in various types of litigation, including defamation and tortious interference cases, as well as in cases in which a person is utilizing an e-mail address “confusingly” similar to a company’s address in order to, inter alia, commit fraud or to unfairly compete. Internet service providers (ISPs), such as America Online, Verizon DSL or Road Runner, utilize certain ranges of IP addresses. The ISP assigns a specific IP address to each service subscriber, usually on a session-by-session basis, when a subscriber connects to the Internet. A discussion of IP addresses and their history can be found in the decision entitled Name.Space Inc. v. Network Solutions Inc. , 202 F.3d 573 (2d Cir. 2000). The specific IP address, in addition to the date and time the e-mail was sent, may be used to identify the owner of the account from which the e-mail was sent. In Matter of the Application of TD Waterhouse Group Inc. , No. 1005020/05 (New York Co., N.Y., Sup. Ct. Feb. 14, 2005), for example, TD Waterhouse, a brokerage company, was granted preaction disclosure from Time Warner Cable Inc., pursuant to New York Civil Practice Law and Rules � 3102(c), to determine the owner of two e-mail addresses so TD Waterhouse would be able to assert an action for fraud, trademark infringement, false designation of origin and unfair competition, among other claims. In TD Waterhouse , the e-mails in question were apparently part of a scam to utilize the brokerage’s name in soliciting bank cashing services. The fraudulent header, however, provided no information that would permit TD Water- house to identify its origination, and the only identifying feature of the e-mail was that responses were to be sent to e-mail accounts that ended with “@austin.rr.com.” A forensic investigator employed by TD Waterhouse used the services of a Web site called SamSpade.org to determine that the ISP that provided the austin.rr.com e-mail addresses was Road Runner, which is owned and operated by Time Warner Cable. The court granted TD Waterhouse’s � 3102(c) application and directed that Time Warner Cable provide the identity of the people and/or entities who were registered to use or had access to the inbox for the subject e-mail accounts; copies of any e-mails that contained or referred to the trade name TD Waterhouse; records reflecting traffic in the offending e-mail accounts; the content and source of replies to the offending e-mails; the nature and identity of any information, including any header information or links to other information sites that were contained in the offending e-mails; and such other information that may be related to the identity of any person using the subject e-mails. Anonymous messages IP address information embedded in e-mails may also reveal the identity of the author of an allegedly defamatory “anonymous” e-mail. In Schubert v. American Express Co ., 4/18/01 N.Y.L.J. 18 (col. 2) (New York Co., N.Y., Sup. Ct. March 30, 2001), the petitioner sought preaction discovery in order to bring a defamation action. The allegedly defamatory e-mail was sent from a Yahoo.com address. The petitioner had previously been granted discovery against Mindspring, the ISP the sender used to send the e-mail.
This content has been archived. It is available exclusively through our partner LexisNexis®.
To view this content, please continue to Lexis Advance®.
LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.
ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.
Discover how to avoid the consequences of ineffective Information Governance including difficulty complying with data privacy regulations, like the European Union’s General Data Protection Regulation (GDPR) or the California Consumer Privacy Act (CCPA), and handling e-discovery and other legal matters.
An expert witness can make or break a case. What if you could determine in minutes how many times a potential expert has testified, how many times his or her testimony has been excluded, the verdicts associated with the testimony, and more? This info brief explains how.
With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
Dynamically explore and compare data on law firms, companies, individual lawyers, and industry trends.
Exclusive Depth and Reach.
Legal Compass includes access to our exclusive industry reports, combining the unmatched expertise of our analyst team with ALM’s deep bench of proprietary information to provide insights that can’t be found anywhere else.
Big Pictures and Fine Details
Legal Compass delivers you the full scope of information, from the rankings of the Am Law 200 and NLJ 500 to intricate details and comparisons of firms’ financials, staffing, clients, news and events.
As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters.
Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss.
Tailored just for you. In your inbox. Every day.