Preface
This very brief note is not legal advice and is for educational purposes only. Evidence has many exceptions and rules (like admissibility) – talk to your attorney.
Discussion
Okay – you’re pursuing or defending in a lawsuit. Your attorney is asking for evidence and you keep telling them about the situation and they keep asking for evidence. What’s going on as the two of you seem to be going in circles?
If this is the situation you’re in it’s what we call a “he said, she said” situation. Imagine yourself on a jury listening to what he said and what she said without any other evidence. In such a situation most jurors just roll their eyes and pray for any scrap of evidence to decide whose story is correct. At this point even scribbles on a napkin are welcome. In fact anything written down is welcome, which leads to a rule that is almost universal.
If it’s not written down – it does not exist.
If it’s not written down – it does not exist.
If it’s not written down – it does not exist.
Yes, repeated as this is very important for you to understand. It really does not matter if you’ve discussed with the other side an issue a thousand times. If it’s not in writing, it does not exist.
So, what is a writing? Here’s the California Code, Evidence Code – EVID § 250 definition of a writing. ‘“Writing” means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.’
So, what’s a document? “DOCUMENT” means a writing as defined by Evidence Code § 250, and shall include, without limitation, the original (and absent the original then a copy thereof), all file copies and copies not identical to the original of any writing or record of every type, form, and description that is in the possession, custody, or control of the responding party, or which no longer is in the responding party’s possession but of which the responding party still has knowledge, whether or not said writings or records are claimed to be privileged or otherwise immune from discovery including by way of illustration and not limitation, the following items: notes, correspondence, communications of any nature (including intra-company communications and correspondence), electronic mail messages, telegrams, cables, memoranda (including internal memoranda), notebooks of any nature, including summaries, minutes and records of telephone conversations, personal conversations or interviews; diaries, routing slips or memoranda, reports (including tests and analysis reports), books, manuals, publications, invoices, specifications, shipping papers, purchase orders, flow charts, schematics, diagrams, photographs of any nature, minutes or recordings of meetings and conferences, including lists of persons attending meetings or conferences; transcripts of oral testimony or statements; reports and/or summaries of interviews; reports and/or summaries of investigations; opinions or reports of consultants; opinions of counsel; agreements and contracts (including all modifications or revisions thereof); reports and/ or summaries of negotiations; court papers, labels, tags, placards, fliers, counter cards, brochures, pamphlets, advertisements, advertising layouts, circulars, trade letters, press releases, and translations; presentations, including boards, transparencies, storybooks and/or scripts; drafts of original or preliminary notes on, and marginal comments appearing on, any DOCUMENTS; whether those writings or records are on paper, magnetic disk, tape or other computer or digital storage medium, microfilm, microfiche, floppy, or any other storage or recording medium.
So it covers this non-exclusive list. Any government document. Any business document. Email. Chats. Messages. Text messages. Checks. Digital records. Invoices. Delivery notices. Legal documents. Accounting records. Business records. Contracts. Tax returns. Credit card charges.
Be aware that disclosure to the public of some information can get you in trouble, like disclosing Social Security Numbers, Credit Card Numbers, information protected by HIPPA, underage information, etc. Talk to your attorney.
Summary
Get it in writing and consult an attorney.
