Thinking about instant messaging and the potential for this communication
format to be included as a part of the definition of a “document” in a
subpoena (the use of the term “document” is broad as you will see), I
decided to take a minute and share with you all a part of a real subpoena.
The description is amazing. Hang on, if you’ve never read one of these
definitions you are in for a dizzying experience!

“The term “Document” or “documents” is synonymous in meaning and equal in
scope to the usage of this term in Rule 34(a) of the Federal Rules of Civil
Procedure and means, in its broadest possible sense, all written  or printed
matter of any kind, including originals and all non-identical copies
thereof, whether different from the original by reason of any notation made
on such copies or otherwise, including, but not limited to, the following:
booklets, brochures, bulletins, signs, pamphlets, circulars, notices,
posters, periodicals, papers, contracts, agreements, photographs, minutes,
memoranda, messages, appraisals, analyses, reports, financial calculations
and representations, invoices, accounting and diary entries, inventory
sheets, diaries, appointment books or calendars, teletypes, telefaxes,
thermafaxes, e-mail, ledgers, trial balances, correspondence, telegrams,
press releases advertisements, notes, working papers, drawings, schedules,
tabulations, charts, projections, plans, models, information or programs
stored on a computer hard drive, floppy disc, compact disc, magnetic tape or
laser disc, (whether or not ever printed or displayed), all graphic or
manual records or representations of any kind including, but not limited to,
the following: phonographs, photographs, microfiche, microfilm, videotapes,
recordings, and motion pictures; and all electronic, mechanical or electric
records or representations of any kind including, but not limited to, the
following: tapes, cassettes, compact discs, laser discs, computer discs,
magnetic cards and recordings; and all drafts, alterations, modifications,
changes or amendments of any of the foregoing.”

While instant messaging is not specifically listed, it appears to me that if
instant messaging had been used in the regular course of business, then that
IM application would be affected by this request. Note the omission of voice
messaging or the specific mention of integrated messaging.  Even still, I
would still include those technologies in my document production and
over-all litigation hold.

It is just a matter of time – I am guessing a short time – before litigators
expand their horizons and specify IM.

Rock on!
Sharon Burnett
Seattle WA

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