One of the more significant developments over the past 20 years has been the importance of emails in litigation. At one point in time, intra-office communications would be in person, or by phone. Today, many in house communications are done by email. Emails are discoverable in litigation. Sometimes emails provide solid evidence in support of your case. Other times you look back in horror as to what someone put down in writing.
When the District Attorney was investigating the allegations of a cover up of sexual misconduct at Penn State, key evidence was provided through emails. Given the passage of time between the events and the investigation, had those emails not existed the results of the investigation would likely have been very different.
A more disturbing issue arises when employees send emails in jest or try to make fun of a serious situation. What may have one day been a joke can later become a major embarrassment. In March of 2013, the New York Law Journal reported about a case in which a law firm was accused of over-billing the client. Internal emails revealed that the law firm had internally discussed the amount of the bill prior to the dispute arising. During the email exchange, one associate wrote: “Churn that bill, baby!” What may have very well been a joke about the size of the legal bill becomes an admission of improper activity.
Snide comments about clients, customers and adversaries can paint an ugly picture of a corporation during litigation. Everyone accepts the fact that when frustrated, people will curse. However, memorializing your foul language in an email demonstrates a lack of discretion, which does not endear one to a jury. Sexual harassment and discrimination are now regularly being proven by comments people made in emails.
One response for employers faced with this issue would be to adopt a corporate records retention policy that automatically deletes emails after a certain time period. However, this policy only works if the damaging emails are outdated before the litigation ensues. Unfortunately, this tactic comes at great risk. For every example of a corporation mortified by the contents of an old email there is a corporation thankful that old emails could be recovered which vindicate them of any wrongdoing during litigation. There is also the added problem of making sure that when litigation arises that documents are not destroyed as part of an automatic sweep of older emails. Emails lost during litigation can be just as damaging as the ones that are found. Do people focus on what Richard Nixon recorded at his office or do they speculate on what was said during those missing seven minutes? Once you factor in the concept that nothing is ever really deleted on a computer system, a company should not rely on a document retention problem to solve the issue of damaging emails.
Due to the permanence of emails, companies must reiterate and enforce the notion that an email, even one done internally, must be drafted with the same care as a letter or intra-office memorandum. A conversation that should take place behind closed doors should not be carried out over the internet. Employees must be directed to operate under the assumption that their emails will be read, whether by their superiors or by a third party, and should draft the content of an email accordingly.