In this digital age, every electronic communication may be tracked, stored and accessed if desired. With more and more communications being sent electronically, employees as well as employers need to be conscious of the e-mails that they are sending and how such communications may be viewed several months or years later.

In an effort to emphasize how important this awareness is, it would be helpful to demonstrate how this may play out in the litigation context. When a plaintiff begins to initiate a lawsuit, a “Litigation Hold” letter is often sent to the employer.

What is a Litigation Hold?

This is an instruction to the employer that it must suspend and preserve any and all communications regarding the plaintiff and anyone else who may be involved with the plaintiff’s allegations. The purpose of the request is to ensure that no evidence, or potential evidence, relating to the matters alleged is lost, altered, or destroyed.

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The law requires that, once litigation is foreseeable, all potential parties must maintain and not destroy any potentially relevant documents, even if that means holding documents well beyond minimum periods set out by law or organization record-retention policies. The date when litigation could be potentially foreseeable would be the date the company receives the letter.

What to Preserve

This litigation hold would generally apply to electronically stored information (“ESI”) on computer systems belonging to the company and all individuals mentioned or referenced in the letter, on the home and portable computers of all persons mentioned or referenced (including portable devices such as telephones) and who are reasonably foreseeable witnesses.

To meet its legal obligations with regard to ESI, the company should immediately suspend deletion, overwriting, or any other possible destruction of relevant documents and data, including its current document destruction policy and/or automatic deletion function on its computers or other electronic devices. Failure to preserve and retain information may result in sanctions against the company.

Company E-mail

Here are some statistics regarding company e-mail:

1. In 2012, the number of businesses e-mails sent and received per day total 89 billion.
2. In 2011, the average corporate employee sent and received 105 e-mails a day.
3. 50% of employees have sent or received e-mails that include jokes, stories or pictures of a “questionable” nature.
4. 66% of employers monitor internet connections.
5. 43% of employers monitor e-mail.
6. Of the 43% of companies that monitor e-mail, 73% use technology tools to automatically monitor e-mail and 40% assign an individual to manually read and review e-mail.

Tips to Protect Employees and Employers from Lawsuits

Sending threatening, unsolicited, or sexually explicit messages to others by e-mail is a form of harassment, as is continuing to e-mail someone who has asked you to stop. Employees should not send anything that could be offensive to anyone. Many lawsuits have come from people sending “innocent” jokes to their co-workers and offending one or more of them.

E-mails can play a prominent role in discrimination cases. For instance, African-American employees were successful suing their employer after a racist e-mail was sent within the company’s e-mail system. A court may admit such an e-mail as evidence relevant to the employees’ discrimination claims. At a minimum, companies should forbid the use of e-mail to transmit sexual, pornographic, racist or other offensive materials in their e-mail communication policies.

Heading Off Invasion of Privacy Claims

Companies may and should protect their legitimate business interests in e-mail monitoring with a detailed and clear e-mail policy. Courts have held that there is no reasonable expectation of privacy in company e-mail. Companies need to explain to their employees that the e-mail system, its software and hardware, belongs to the company and is intended for business purposes only. The policy should reserve the right to monitor the use of e-mail at the company’s discretion. Upon joining the company, the employer should have its employees acknowledge this policy to defend against a potential claimed expectation of privacy in the future.

However, the New Jersey Supreme Court held 7-0 that an employee can expect privacy and confidentiality in e-mails with his or her attorney which are sent and received through a personal, password-protected, web-based personal e-mail account using an employer-issued computer. This is a narrow exception as only legal advice is covered, nothing else.

Conclusion

Be wary of the unintended consequences of e-mail usage. Ask yourself before sending an e-mail if you would want your e-mail produced in litigation or shown to a jury.