Emails. Text messages. Instant messages. Social media. The digital age has given birth to powerful new ways to communicate that have transformed how we live and conduct business. But the proliferation of communication options has come with increased exposure to claims in litigation of withholding, hiding, destroying, and losing evidence.

A reminder of the increasing danger of the digital age in discovery recently arose in the New York state attorney general’s investigation of ExxonMobil’s research into the causes and effects of climate change. After receiving documents from Exxon pursuant to a subpoena, the state attorney general informed a New York court that it had discovered that former Exxon CEO and Chairman Rex Wayne Tillerson had used an “alias email address on the Exxon system under the pseudonym ‘Wayne Tracker’ from at least 2008 through 2015.” Letter from John Oleske, Senior Enforcement Counsel, to The Hon. Barry R. Ostrager (March 13, 2017).

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