From Your Out-Box to the Witness Box: E-mail in Litigation
"I feel horrible and alone – unloved and even scared." So confided former President George H.W. Bush to journalist Hugh Sidey. What led to this sense of isolation? Mr. Bush had just learned that, due to a server malfunction, he would lose e-mail access for several days. While the former President wrote, tongue-in-cheek, that he felt "lonely and lost" without e-mail, his view on "the absolute essentiality of e-mail" is shared by businesses and executives worldwide. 1
Indeed, office workers exchange nearly three billion e-mails each day.2 And many of these e-mails later make their way to the courtroom. According to a recent survey by the ePolicy Institute, more than 20% of all employers have received subpoenas for the production of employee e-mails and instant messages.3 Internal company e-mails have become the first place that attorneys look for evidence to use against their adversaries. The government's antitrust case against Microsoft rested largely on internal e-mails. CS First Boston executive Frank Quattrone was convicted of obstruction of justice on the basis of a single e-mail. The Arthur Andersen accounting firm suffered a similar fate and was forced to dissolve.
Why is e-mail so frequently the linchpin of a plaintiff's case? Primarily for three reasons. First, e-mails are often exceedingly casual and informal. Employees write down thoughts or opinions that they'd never otherwise record on company letterhead. Second, e-mails are permanent and retrievable. What appears fleeting is actually everlasting. Third, e-mails disclose precisely who said what to whom, and when. With e-mail, there's no need to worry about a witness' shaky memory or questionable credibility.
Common Misconceptions About E-mail
E-mails tend to be written with little care because of three misconceptions shared by many office workers. First, many consider e-mail to be a substitute for a phone call or stopping by a colleague's office. E-mail, however, does not simulate face-to-face conversation. E-mail provides a verbatim record of what was said, but with no context. It can then easily be forwarded to countless others whom the author never even met.
E-mail, moreover, does not allow for facial expressions, body language, or modulation of tone and inflection. Nor can we exchange in a "give-and-take" or adapt to our colleague's reaction. E-mail is thus no substitute for uncomfortable or sensitive conversations. Negative feedback, constructive criticism or potentially bad news of any kind is best given directly and in person – not in an e-mail to be read repeatedly with ever-hardening feelings. That is a potential recipe for litigation.
Second, employees tend to speak unguardedly through e-mail because of the seeming intimacy and privacy as they type quietly alone in their offices. Nothing could be further from the truth, however. Rather than being a private, personal communication, employee e-mail is another type of letter or memorandum on company stationery. As a result, employee e-mail is subject to subpoena and discovery in litigation involving the corporation.
Third, and perhaps most important, e-mails frequently are written in a slapdash manner because they appear temporary and fleeting. An e-mail is sent with a mouse-click, and then often viewed only briefly on-screen before being deleted from the in-box. Many employees fail to understand, however, that "delete" doesn't mean "destroy." After an employee empties his or her in-box, the
e-mail endures. Indeed, a nine-year-old e-mail from a Microsoft employee to Bill Gates was a key piece of evidence in the anti-trust trial. How can this be? Unless erased, a deleted file remains on a computer hard drive or network system until space becomes scarce and the file is overwritten. This process may take years. Many corporations also store data on off-site back-up tapes. Of course, all this covers only half of the equation: Even setting aside the recipient's files, the e-mail persists independently in the sender's out-box, hard drive and computer system. By the time the e-mail surfaces in litigation years later, memories have faded, context is forgotten, and only the text remains.
What Your Company Can Do
Educate employees as to proper e-mail usage and the risks of an ill-considered
e-mail. Consider conducting workshops and circulating a written policy. Employees should understand that any e-mail may survive for years and someday play a role in litigation. As a result, employees should treat each e-mail like any company memorandum or letter. Most important, employees should include only information and language that they would use in any document on corporate letterhead. To that end, e-mail warrants the same care and attention as any other document. Employees should use proper grammar, spelling and punctuation. Before being sent, e-mail should be saved as a draft, reviewed for content, and proofread.
Employees should understand that certain subject matter and language is more likely to become the focus of litigation, and thus is inappropriate for e-mail. E-mail is not the ideal place for negative feedback or a critical performance review. Nor should employees use e-mail to criticize their colleagues, competitors, clients or customers. The same holds true for the products or services of the company and its competitors. Unnecessary e-mail about pending or potential legal matters should likewise be avoided.
Importantly, e-mail is not the place to blow off steam: Never "fire off" an e-mail in anger or frustration. Nor is e-mail the place for attempts at humor or sarcasm. Of course, e-mail should never include insensitive or off-color comments or obscene language. Employees should understand that your company's sexual harassment and anti-discrimination policies apply fully to all e-mails and attachments. E-mail is no different from any other workplace communication or interaction, and is subject to all rules governing employee conduct.
The recipients list should be carefully selected and triple-checked before an employee clicks "send." Disney CEO Michael Eisner once confessed that he risked violating federal law when he accidentally e-mailed a confidential earnings report to an ABC News employee with the last name "Wolfe," instead of to its intended recipient, a Disney executive named "Wolf." No harm followed, but Eisner understood the risks of misdirected e-mail: "Of course, the SEC wouldn't have laughed if the earnings had leaked out or someone at ABC News had traded in our stock. In that case, I'd be e-mailing this speech from Lompoc [a nearby federal prison]."4
Employees should choose their recipients wisely and send e-mail only on a need-to-know basis. Particular care should be given to e-mail that contains confidential or proprietary information, such as trade secrets and discussions of internal projects or products in development. Employees should always beware of the "reply to all" icon and (as Eisner learned) of programs that automatically complete the recipient's name after the first few letters. When it comes to e-mail, "return to sender" is never an option.
What more can your company do? Consider advising employees of management's right to monitor all e-mail traffic on the corporate computer system. 5 Employees should acknowledge that they have no reasonable expectation of privacy in their work e-mail and that the company may monitor anything generated, transmitted or stored on its computer system. Additionally, consider adopting a record retention policy that applies to all electronic data, including e-mail. This policy should, among other things, govern the routine archiving, deletion and erasure of electronic data; specify the circumstances (such as the emergence of litigation) giving rise to a duty to preserve data that would otherwise be destroyed; and set forth procedures for identifying, collecting and preserving relevant data.
Moving Forward
It has been predicted that, by 2006, more than sixty billion e-mails will be sent each day.6 Recognizing that e-mail's role in litigation is only growing, in August 2004 the federal judiciary proposed amendments to the Federal Rules of Civil Procedure that address the discovery of electronically stored information.7 Among other things, the proposals redefine the term "document" to include electronically stored information and require the parties to address discovery of such information at the outset of litigation. Additionally, the proposed amendments require the production of relevant electronic records that are routinely accessed or easily located and retrieved. However, if the requested electronic records are not reasonably accessible – i.e., cannot be accessed absent heavy cost, effort and burden – they need be produced only on a showing of good cause. The proposed rules are subject to public comment until February 15, 2005, and may become effective as early as the close of 2006.
Meanwhile, e-mail becomes ever more critical to how we conduct business. The popular portable document format ("pdf"), for example, now allows us to scan hard documents and send them via e-mail with a cover note. With our Blackberries, we can now write and send e-mails on the go, even as the miniature keyboard makes it harder for us to express ourselves properly. For many, the result of these technological advances likely is more hastily and poorly written e-mails. Likely, but not inevitable. By educating ourselves as to proper e-mail usage and the litigation risks attending ill-considered e-mail, we can substantially reduce the likelihood that today's e-mail message will become tomorrow's "Plaintiff's Exhibit 1."
Footnotes
1
George H.W. Bush, All the Best, George Bush: My Life in Letters and Other Writings, 619-21 (1999).2
Peter Lyman & Hal Varian, How Much Information? (2000), at http://info.berkeley.edu/how-much-info.3
Bill Atkinson & Stacey Hirsh, Messaging in the Workplace, Baltimore Sun, Oct. 10, 2004, at C1.4
Michael D. Eisner, You've Got E-Mail, So Use It Wisely: USC 117th Commencement, Alumni Memorial Park, May 12, 2000, USC Chron., May 22, 2000.5
See, e.g., Thygeson v. U.S. Bancorp, 2004 WL 2066746, **18-22 (D. Or. Sept. 15, 2004); Garrity v. John Hancock Mut. Life Ins. Co., 2002 WL 974676, *2 (D. Mass. May 7, 2002).6
Gretel Johnston, We've All Got Mail: IDC Predicts 60 Billion E-mails a Day By 2006, IDG News Serv., Sept. 27, 2002, at www.computerworld.com/softwaretopics/software/groupware/story/0,10801,74682,00.html7
See www.uscourts.gov/rules (Federal Rulemaking; August 2004 Proposed Rules Amendments Published for Comment).The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.