From Your Inbox to the Jurybox: Today’s Email Could Become Tomorrow’s Litigation Nightmare

By Joseph M. Sweeney, Esq., Stuart J. Schmidt, Esq. & Caitlin E. Kaufman, Esq.

Many people in business do not keep in mind that their emails create a permanent written record that can be obtained and used in a lawsuit against them or their company. They tend to treat their emails as private, “off-the-record” communications of little consequence, only to find out that those emails can be obtained and interpreted by lawyers suing the company as key evidence of admissions, breach of contract, tortious wrongdoing or improper motive.

The following are examples of emails which could wind up as exhibits at trial:

• “Dave, don’t you think that new girl in accounting is hot? I’d sure like to crunch her numbers…”
• “Tom, it looks like we are falling behind on the J Street Project. Any idea what the problem is?”
• “Pat, I think Jim has had some trouble getting his rew to show up on time. I will look into it.”
• “Jim, I heard your crew is dropping the ball on J Street. Please do what you can to speed things up over there, otherwise the project may be delayed.
• “Tom, you’re right, a couple of my guys are really screwing around. I will give them a warning or two and if things continue, we can consider letting them go.”

While emails may be an attempt to solve a problem quickly and efficiently, they will be portrayed as an admission of fault by opposing counsel in litigation. If you or your employees never write emails like this, you are on the right track. But if this email chain is typical of the way anyone in your company communicates, read on!

As technology advances, the world moves at a faster pace every day. While email may seem like a private and efficient way to communicate with co-workers and others, one must be careful with what is written.

While emails are written, email has become very informal and can be used as a tool to “talk” or worse, to think out loud. This can have devastating implications. Nothing should be written in an email that would not be said, much less put in a formal writing. Remember, it is difficult to determine the tone of an email and it can be easily misinterpreted when it stands alone, without context or explanation.

Employees should be aware that an employer has the legal right to review emails without requesting permission from the employee. Employers should know that emails are discoverable in litigation. Speculation about fault on the part of the company, areas where improvement may be necessary, or inappropriate comments about other employees can be extremely difficult, if not impossible, to overcome in litigation.

It is also important to remember that an email is a permanent writing that exists on a hard drive or server long after it is deleted from your inbox or outbox, and evidence of an attempt to delete an email will only worsen its negative impact in litigation.

We propose you encourage employees to implement the following procedures when using email.

Tips to Help Avoid the Pitfalls of Email:

1. Compose each email as if it were going to be read by your biggest competitor or a jury.
2. Do not say anything in an email you would not be comfortable with others reading – the only confidential emails are those sent between you and your attorney. You should only say things you would not mind your co-workers, supervisor, and other third parties reading.
3. Do not make admissions of company deficiencies in emails.
4. Always double check to be sure that your email is being sent to its intended recipients. Emails often end up inadvertently being sent to the wrong recipient, which can sometimes be not only embarrassing but disastrous!
5. When attaching files to an email, ensure that the appropriate document has been attached. Emailing an attachment makes that document public, not to mention that it can be an embarrassing indication of carelessness.
6. Re-read each email before you hit “send.”
7. Remind your employees regularly of these rules regarding emails and have them confirm they are following these guidelines.
8. Reiterate to all employees that “private” conversations are just that, conversations, and should never be written in an email.