E-MAIL
AND ETHICS IN DISCOVERY
By
Bruce S. Harrison
Fiona
W. Ong
This
article was originally published in Matthew Bender's,
Employment Law Bulletin.
Introduction
Microsoft.
Enron. These names bring visions of corporate giants
brought low
by their Achilles heel – e-mail and other computer
evidence.
In our society today, e-mail has become a means of casual
conversation and easy communication. People think
nothing of typing and sending a quick joke, a thought,
or a comment. All too frequently as individuals, we fail
to consider the fact that e-mail, unlike the ephemeral
nature of conversation, has a life of its own. Businesses
are now facing the realities of the power of e-mail in
litigation, both good and bad.
This article discusses some of the ways in which e-mail
can be utilized in employment (and other) litigation. It
also discusses some of the ethical concerns facing attorneys
in handling the discovery process with regard to e-mail.
Discovery of E-mail
The
Federal Rules of Civil Procedure generally provide that "Parties
may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the
pending action . . ."
[i]
Over the years, the Rules have been amended
in recognition of the technological changes in business practices.
In
both Rules 26 (governing the scope of discovery and disclosure
obligations) and 34 (regarding the production of documents), "data
compilations" were added to the lists of types of documents
that may be obtained through discovery.
[ii]
The Advisory Committee notes to Rule 26 observe
that "the disclosure should describe and categorize . . . the
nature and location of potentially relevant documents and records,
including computerized data and other electronically-recorded
information, . . ."
[iii]
The Advisory Committee notes to Rule 34 provide
further illumination as to the scope of such "data compilations":
The
inclusive description of "documents" is revised to accord
with changing technology. It
makes clear that Rule 34 applies to electronic data compilations
from which information can be obtained only with the use
of detection devices, and that when the data can as a practical
matter be made usable by the discovering party only through
respondent's devices, respondent may be required to use
his devices to translate the data into usable form. In
many instances, this means that respondent will have to
supply a print-out of computer data. The
burden thus placed on respondent will vary from case to
case, and the courts have ample power under Rule 26(c)
to protect respondent against undue burden or expense,
either by restricting discovery or requiring that the discovering
party pay costs. Similarly,
if the discovering party needs to check the electronic
source itself, the court may protect respondent with respect
to preservation of his records, confidentiality of nondiscoverable
matters, and costs.
Thus, the Rules recognize not only the discoverability
of e-mail and other computerized evidence, but also that
there are significant complications that may arise in the
course of such discovery. These
complications can involve both practical matters (e.g.
costs and logistics of production, etc.) as well as ethical
ones (e.g. ensuring production of all relevant information,
protecting privileged or confidential information, etc.).
E-mail as Evidence in Employment Litigation
As one
commentator has noted, e-mail issues arise most frequently
in the employment context.
[iv]
This commentator also notes that the number
of employment cases involving e-mail was about twice the number
of cases in any other category, and that the total number of
cases is expected to rise dramatically.
[v]
In the context of employment disputes,
e-mails can serve as evidence to be used as a sword by
employees or a shield by employers.
E-mails
can serve as the basis (in whole or in part) for a harassment
claim by an employee. Such claims can involve the content of the
e-mail. For example,
in Knox v. Indiana,
[vi]
an employee brought suit for sexual harassment. Repeated
e-mail messages from her supervisor, asking her for sex, were
critical pieces of evidence.
A
claim of harassment can also involve the number of e-mails
that are sent to the employee. For
example, in Greenslade v. Chicago Sun-Times, Inc.,
[vii]
the plaintiff's sexual harassment claim
was based, in part, on the excessive number of e-mails that were
sent by a co-worker.
Similarly,
e-mails can evidence discriminatory attitudes or intent
against an employee. In Strauss
v. Microsoft Corp.,
[viii]
the court permitted the plaintiff to use e-mail
with sexual references as evidence showing gender discrimination.
On
the other hand, employers may use e-mails to demonstrate
employee misconduct. For
example, in Smyth v. Pillsbury Co.,
[ix]
the court found that the plaintiff
had no claim for wrongful termination where he was fired
for
sending
inappropriate e-mails over the company's e-mail system.
In
addition, employers may rely on e-mail evidence to support
a defense against employment discrimination claims. As
the Supreme Court has recognized, the promulgation and
dissemination of effective anti-discrimination and harassment
policies is a significant part of an employer's defense
to such claims.
[x]
E-mail can provide an effective and efficient
way to communicate such policies to all employees. Secondly,
the fact of the communication itself is documented in the e-mail.
Consequently, employees will find it more difficult to argue
that they did
not have knowledge or notice of the policies. For example, in Idusuyi
v. Tenn. Dept. of Children's Servs.,
[xi]
the court found that the employer had effectively
communicated its anti-harassment policy to its employees when
it disseminated the policy through a computer server, sent the
policy to its employees by e-mail, and posted it on a board.
Ethical Issues
The
discoverability of e-mail gives rise to a number of ethical
considerations on the part of counsel. These
involve the scope of the production, as well as its substance. Failure to abide by these ethical obligations may give rise to
disciplinary measures against the attorneys. For
example, in Cobell v. Bruce Babbitt,
[xiii]
the court found that government attorneys
failed to timely and accurately inform the court and the opposing
party of the destruction of documents that were responsive to
the opposing party's discovery requests. The court specifically
found that the attorneys were guilty of violating the Rules of
Professional Conduct, and
should be subjected to disciplinary or corrective action.
Retention of Relevant Evidence
The
American Bar Association's ("ABA") Model Rules of Professional
Conduct provide that "A lawyer shall not . . . unlawfully
obstruct another's access to evidence or unlawfully alter,
destroy or conceal a document or other material having
potential evidentiary value. A
lawyer shall not counsel or assist another person to
do any such act . . ."
[xiv]
There
are several issues associated with records retention. First,
it is important for a company to have an effective records
retention policy. It
is not efficient to simply retain all documents, even those
in electronic format. This can absorb significant resources
for storage. In addition,
the greater the number of documents stored, the more difficult
it becomes to keep them organized and accessible.
Second,
without a records retention policy, employees may inadvertently
engage in haphazard retention and/or destruction of documents.
Further,
a reasonable retention policy that permits the timely destruction
of old documents will lessen the discovery burden on a
company in litigation if there are only two years of
e-mail to sort through, that is obviously a smaller task
than if every e-mail ever sent or received by the company
has been retained.
Whatever
retention policy is implemented, it must be sufficiently
flexible to deal with litigation needs. Obviously,
once litigation has commenced, it is imperative that any
destruction of computerized data that occurs in the normal
course of business must be suspended. Failure to do so can result in serious consequences.
For example, in William T. Thompson Co. v. General Nutrition
Corp.,
[xv]
the defendant, GNC, deleted electronic
records that were being sought by the plaintiff. The
data on these records was not otherwise available, and the records
could not be recreated. The Court found that GNC knew or should
have known that the records were relevant to the litigation and
that
GNC had been ordered to preserve these records. GNC,
however, did not instruct its employees to preserve the records;
rather, it stated that its standard document retention and destruction
procedures should continue. As
a result, the Court sanctioned GNC by striking its Answer to
the plaintiff's Complaint, entering a default judgment for the
plaintiff, and striking GNC's Complaint in a related case.
All
attorneys are subject to an ethical duty to protect their
client's legally confidential information. Thus,
attorneys must be careful not to disclose materials that
are subject to either the attorney-client privilege or
the work-product doctrine.
With
respect to the attorney-client privilege, the ABA Model
Rules of Professional Conduct provide in relevant part
that "A lawyer shall not reveal information relating
to representation to representation of a client, unless
the client consents after consultation, except for disclosures
that are impliedly authorized in order to carry out the
representation . . ."
[xvi]
As
for the work-product doctrine, it is set forth in the Federal
Rules of Civil Procedure.
[xvii]
This doctrine protects materials that
are prepared in anticipation of litigation or trial,
either by a
party or a party's representative.
There
are a number of problems involved in the observance of
these ethical obligations, arising from the nature of e-mail
itself. First is the sheer volume of e-mail that is
generated in the normal course of business, even for a
small company. Second is the typical absence of any filing
or management mechanism, meaning that business communications
are intermingled with personal ones. Third
is the fact that people tend to use more casual language
in e-mail communications, even for business discussions.
These
characteristics of e-mail render a privilege review a daunting
task. The vast numbers of e-mail make the prospect
of a page-by-page (or screen-by-screen) review a mind-numbing,
if not impossible project based on time and cost. Programs
that are designed to filter e-mails based on specific words
may miss e-mails based on the sender's word choice or spelling.
Pulling the e-mails from or to an attorney may not be difficult,
but tracking other in-house discussions
of that information may be. Similarly,
identifying information that is protected by the work-product
doctrine may also be difficult.
Nonetheless,
a privilege review must be conducted with care. The consequences of an inadvertent production of privileged information
can be dire. In United
States v. Keystone Sanitation Co.,
[xviii]
a party inadvertently produced two e-mails
between its lawyers discussing their billing statements. The
court held that the inadvertent disclosure waived the attorney-client
privilege.
There
are a number of steps that the company and counsel can
take to protect the privilege. As
a broad-scale solution, a company should implement some
sort of management system to segregate privileged material
from the remaining e-mails. Once
the company is in litigation, counsel should be careful
to ensure that the reviewing process is as thorough as
possible. As an additional precaution, it may be wise
to come to an agreement with opposing counsel that inadvertent
disclosures of privileged e-mail does not waive the privilege.
Trade Secret and Confidential
Information
An
attorney has the obligation to protect his client's interests
during the course of his representation. The
Preamble to the ABA Model Rules of Professional Conduct
notes that a lawyer is the representative of his clients,
and that he "zealously asserts the client's position. As
practitioners, we have repeatedly heard the directive that
we must put our client's interests ahead
of all else. In this regard, it is critical that an attorney
be careful to protect the client's trade secrets and confidential
business information.
For
the same reasons discussed with regard to the protection
of privileged information, the protection of trade secrets
and confidential business information is problematic. In
fact, it may be even more difficult to identify such e-mails
than privileged ones, given that the subject matter cannot
be distinguished on the basis of the discussion of legal,
rather than business, matters, or the involvement of attorneys.
Steps
similar to those discussed above regarding privileged materials
may be taken to protect trade secret and confidential information.
Again, a filing or management system for e-mails could
segregate
out such sensitive communications. A
thorough review will still need to be conducted. In addition,
it may be wise to enter into a joint confidentiality agreement
with opposing counsel or seek a confidentiality
order from the court to ensure non-disclosure of this information.
Full Disclosure of Relevant Evidence
Under
the Federal Rules of Civil Procedure, a party is entitled
to discover "relevant" evidence.
[xix]
The ABA Model Rules of Professional Conduct
also provide that an attorney shall not "in pretrial procedure,
. . . fail to make reasonably diligent effort to comply with
a legally proper discovery request by an opposing party."
[xx]
In other words, an attorney's ethical obligation
is to produce all data that is relevant to a claim or defense.
The
principle is simple; the execution, with regard to e-mail
and other computerized data, is not. Logistically,
the data on the computer system or back-up system (e.g.
tapes, disks, etc.) may not be readily accessible. The company may have undergone a system conversion, and data under
the prior system may not be accessible or readable. There may be more than one location (e.g.
file, computer, system) where the data is retained. Overwritten files may still be recoverable. Data may not be backed up or archived in any
sort of organizational fashion.
Attorneys
and their clients who fail to meet this obligation may
face serious consequences. For
example, in Crown Life Ins. Co. v. Craig,
[xxi]
the court sanctioned the defendant because
the defendant failed to disclose or produce computer data that
was inaccessible at the time of the initial request, but later
became accessible. The
court prohibited the defendant from using any evidence on its
defense, leading to a default judgment against the defendant.
The Use
of Experts
An attorney also has ethical obligations
with respect to any experts that he retains to review
or work with e-mails and computerized data. The
ABA Model Rules provide, in detail, that:
With respect to a nonlawyer employed or
retained by or associated with a lawyer:
(a) a partner in a law firm shall make
reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that the person's
conduct is compatible with the professional obligations
of the lawyer;
(b) a lawyer having direct supervisory
authority over the nonlawyer shall make reasonable efforts
to ensure that the person's conduct is compatible with
the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct
of such a person that would be a violation of the Rules
of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge
of the specific conduct, ratifies the conduct involved;
or
(2) the lawyer
is a partner in the law firm in which the person is employed,
or has direct supervisory authority over the person,
and knows of the conduct at a time when its consequences
can be avoided or mitigated but fails to take reasonable
remedial action.
[xxii]
Thus, an attorney
has significant responsibility for the actions of his
experts, whether working with the company's electronic
data or that of the opposing party.
In many instances, an attorney may
hire an expert to go through the data produced by the
opposing party. The attorney should take steps to ensure that
the expert will not accidentally damage the integrity
of the other party's computer data or system. For
example, in Gates Rubber Co. v. Bando Chem. Indus.,
Ltd.,
[xxiii]
the plaintiff's expert examined an individual
computer, using a program that randomly erased 7-8% of the otherwise
available data.
With regard to
production of the company's electronic communications
in response to discovery requests from the opposing party,
it may be necessary to retain an expert to develop systems
to sort and manage the e-mail. Under
such circumstances, the attorney should ensure that the
expert complies with ABA Model Rule 3.4 and does not "alter,
destroy or conceal" any data.
Reasonable
Requests for Discovery
Under
the ABA Model Rules, an attorney should not "in pretrial
procedure, make a frivolous discovery
request . . ."
[xxiv]
As discussed above, responding to a
request for e-mail records can be a hugely burdensome
task.Attorneys should be cognizant of those burdens in
drafting discovery
requests.For example,
where possible, requests could be limited to seeking the e-mail
of certain individuals or e-mails transmitted during a limited
time period. Requests that are deemed to be overly burdensome
will not be enforced by a court. For
example, in Fennell v. First Step Designs, Ltd.,
[xxv]
the court refused the plaintiff's discovery
request for all files stored on a computer hard drive.Although
the court acknowledged that such discovery could be appropriate
in some cases, it was not in that case because the plaintiff
failed to show a particularized likelihood that appropriate information
could be discovered.
Conclusion
The
issues associated with the discovery of electronic communications
and other computerized data can be complex, and the ramifications
of failing to understand those issues can be severe, not
just for the client, but also for the attorney on a professional
basis.Attorneys
must be aware of how their ethical obligations shift and
change with the rapidly changing technologies in our society.
"This article
was originally published in Matthew Bender's, Employment
Law Bulletin."
