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A Better Partnership


Jun 2005
June 13, 2005

When to Have an E-Mail-Free Transaction

If a tree falls and nobody hears it, does it make a sound? If I send or receive an off-the-cuff e-mail and it's deleted, is it really gone? Although the first question has perplexed thousands over the years, the answer to the second question is a definite "No." Because of e-mail's very nature –either the entire e-mail or bits of it can be retrieved even years after it was sent and "deleted" – it is important to be aware of the circumstances under which you're drafting e-mails and why you’re doing so.

Many important business discussions should not be held over the e-mail. It obviously is not possible to halt all e-mail communication on a particular subject (although in some circumstances that may be nice). Rather, this article is a reminder that e-mail communications regarding important business discussions should be kept to a minimum, at least. Why? Most people using e-mail tend to be less formal in their communications, or they tend to write what's on their mind at the spur of the moment. Moreover, sarcasm or other meanings that can be conveyed by the sound of your voice or facial expression are lost in an e-mail. Simply put, there are many examples of people saying things in an e-mail that are easily misconstrued, or that they would never dream of saying in a conversation or in a more formal document.

Some good examples involve decisions to terminate employment. Say that a female employee has had several well-documented performance problems and you have been contemplating her termination for some time. She has now just found out she's pregnant, for the third time. You as her manager may fire off an e-mail to another management colleague, or your boss, complaining about how the employee's pregnant again, and that despite her performance problems, this will still adversely affect your group's productivity. You terminate this employee three months later. A year later, she sues, and her lawyer asks for all electronic communications regarding this employee, as well as the hard drives of the computers of all management involved in the termination decision. Although that e-mail has long been deleted, a search of your colleague's hard drive reveals it – the proverbial "smoking gun." Despite the fact that you did not, and indeed would not, terminate this employee because she was pregnant, it now looks like the claim of poor performance was just an excuse to fire her.

Other examples involve businesses that have just learned they've been sued. It is not uncommon to discover e-mails from one management employee to another saying "I knew it" or "I told you this was going to happen." Unless these types of e-mails were to your lawyer, the other side will be able to discover what was said upon the company being sued.

The bottom line is that e-mail should no longer be considered the informal communication method many of us have become accustomed to. Rather, it is, and will be used later, just like any other formal business record. Avoid the temptation – and temporary satisfaction – of firing off an e-mail regarding a sensitive situation or business transaction. Take the time to formulate your thoughts. The meaning you intend will actually be conveyed, and you will not be confronted with an embarrassing and potentially damaging document in the future.

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Edward J. Bardelli is a partner in the Grand Rapids office of Warner Norcross & Judd LLP. His practice focuses in the area of litigation, with a concentration in employment, securities and general corporate matters. He may be reached at 616.752.2165. Because each business situation is different, this information is intended for general information purposes only and is not intended to provide legal advice.


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