With today’s technology, everything is accessible at our fingertips. Work emails are a click away from personal emails and text messages offer an even faster mode of communication. Most professionals understand that work emails can be discovered in litigation. This means that an adverse party can obtain these communications if they are relevant to the dispute. However, courts are now ordering parties to produce communications from personal email accounts as well. Below are a few tips to avoid discovery pitfalls.
Tip #1: Be careful what you put in writing.
We often advise clients to timely document employee issues such as performance concerns and disciplines, accommodation requests and the interactive process, and internal complaints and investigations. However, for certain discussions, typically those involving compliance questions or litigation concerns, in-person or telephone conversations are preferable to written communications.
In a Texas case, an HR manager’s email became the plaintiff’s “smoking gun” in her sexual harassment and retaliation case. The plaintiff, a female sales representative, reported sexual harassment multiple times to HR. The employer fired the harassing employee. Unfortunately, coworkers criticized the plaintiff for the harasser’s firing. The plaintiff quit and filed suit, alleging that the employer knew about the harassment and retaliation she faced and did nothing. During discovery, the court ordered the employer to produce company emails. One email essentially proved the plaintiff’s case. The HR supervisor had sent an email to department supervisors stating, “Ultimately, the fear is that no matter what is done [plaintiff] will attempt to sue for retaliation. This may be an issue for us, as we have kept no real written documentation of any incident on file. We will need to create documents to complete her file.” The court found this email to prove that the employer was aware of the harassment and then tried to fabricate employment documents. The employer ended up settling with the plaintiff.
Tip #2: Even personal emails may be discoverable.
Courts will order parties to produce their personal emails if those emails are likely to contain information that is relevant to the lawsuit. In a New York case, the plaintiff sued six male attorneys for underpaying female attorneys. The male attorneys claimed that individually, none of them had power to hire or fire employees and offered their business emails as proof. However, the plaintiff insisted that these six attorneys were all members of a sub-committee that exercised unilateral control over hiring and firing decisions. The plaintiff asked the court to order production of the attorneys’ personal emails. The male attorneys insisted that they had never conducted business from their personal accounts. However, the court relied on the plaintiff’s allegation that the relevant emails were in the attorneys’ personal accounts and ordered the attorneys to produce their personal emails. Not only did these emails indicate that there was a sub-committee, but they also were very damaging to the law firm.
Tip #3: Texting from your personal phone is not an exception either.
If you conduct business via text, your personal text messages are likely to be discoverable. In a Tennessee case, the plaintiff, a female chef, filed suit for sexual harassment and tortious interference with employment. The plaintiff claimed that the owner of the restaurant was sexually harassing her. She put up with the treatment for some time but eventually complained via email to the restaurant’s director of operations. Shortly after the director of operations received this email, he terminated the plaintiff. The employer claimed her termination was work related and had nothing to do with her harassment complaint. The court found that, in general, restaurants often conduct business via text messages and ordered production of the owner’s and director of operations’ text messages. One text stated that they needed to make the plaintiff’s harassment claim “go away.” Another text even discussed blaming her firing on a work slip-up instead of her harassment claim. The court ruled in favor of the plaintiff on both claims.
Tip #4: Even if you do not click send, drafts are discoverable too.
In a case out of Minnesota, two snowmobile manufacturers went head to head in a patent infringement battle. The defendant was convinced that the other side had copied its snowmobile design. The defendant claimed that the infringement could be exposed by the engineer’s design drafts, and the court ordered them to be produced. The engineer’s handwritten notes were produced and proved to be potentially damaging.
In an employment case, courts can order the production of draft investigation reports, performance evaluations or disciplinary actions. Employers are advised to keep only final, clean copies of such personnel documents.
Tip #5: If you must put it in writing, consider involving your attorney.
Although no secure server can keep written communications out of court, discussions with your attorney for the purpose of obtaining legal advice are shielded from discovery by the attorney-client privilege. This privilege exists to encourage clients to communicate openly and honestly with their attorneys, without the fear that those communications will later harm them. So if you have a sensitive employment matter to discuss, loop your attorney into the conversation for confidential legal advice.
