Limit the Impact of E-Mail in Court

You just finished typing a draft of an aggressive e-mail message explaining why you think your company's strategic plan can -- and will -- destroy the competition.

Later, you think the memo was too bold, particularly the attachment that showed how much market share you could steal from the competitors in your hometown. You decide to delete the e-mail. It's gone, right? History will never see it. Wrong.

Plaintiffs and prosecutors alike are finding that e-mail can provide fertile ground for discovery in litigation. It is playing a greatly increased role in court for several reasons:

1. E-mail is almost impossible to destroy. Deleting a message doesn't mean its content is gone. When a user deletes a file, the computer just renames it and sends it to another part of the hard drive, where it will probably remain for the life of the computer. Even if the hard drive is destroyed, the information can usually be retrieved from back-up tapes.
2. In most cases, attached documents and unsent drafts can also be recovered, as well as pertinent information such as who wrote them, which computer they were typed on, where they were saved and when they were prepared.
3. Few people filter e-mail material with the kind of language they would exclude in a formal memo. In fact, the speed and informality of e-mail have made it a trap for the unwary and turned the tide in some multimillion dollar cases.

The not-so-pure plaintiff. In one sexual harassment case, an employment attorney explained the plaintiff painted herself as a pious, churchgoing soul who suffered greatly when her supervisor allegedly inquired about her dating history. But the plaintiff's claim failed when a search of her e-mail revealed hundreds of pages of pornographic material and jokes.

The jolting joke. In Strauss v. Microsoft, a supervisor forwarded jokes to other staffers. A federal court held that the e-mails displayed an attitude of discrimination that was relevant to an employee's claim of sexual discrimination.

Jack and the beanstalk. In Caldera v. Microsoft, a federal district court found that a series of intracompany e-mails offered "direct evidence" that the software giant was actively trying to destroy a competitor.

Other examples, even outside the courts, include massive e-mail abuses that have gone undetected by employers for years at a time. Examples of uncontrolled e-mail abuses resulted in mass firings at the Clinton White House, Xerox Corp., Dow Chemical Co. and The New York Times,among other organizations.

These cases illustrate that even the most sophisticated participants of the high tech revolution can fall victim to the evidentiary pitfalls of e-mail. If your business becomes involved in a lawsuit and you are required to provide electronically stored information (such as e-mail) as evidence, the cost can be enormous. And according to court cases like Mikron, listed below, unless you can prove that making this information accessible causes an unusual hardship, there's a good chance you will have to pay the bill (Mikron Ind., v. Hurd Windows & Doors Inc, 2008 WL 1805727, W.D. Wash. April 21, 2008).

Remember: Clearly articulated, written policies can help employers defend their actions, or prevent liability. Every statement made on e-mail can be just as significant as a statement made on paper. Your company must accept that it may be at risk and institute a policy covering acceptable and non-acceptable uses of e-mail by employees.