Are You Prepared for E-mail Discovery?

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October 2, 2007

During the discovery period of litigation, one side digs for information from its opponent by asking written questions, submitting requests for documents, and conducting face-to-face interviews (i.e., depositions). Attorneys are bound by ethics and the law to turn over the requested information, even if it is incriminating or harmful to their case.
In modern litigation, attorneys frequently demand the production of relevant e-mail. Because of its informal nature, attorneys consider e-mail an excellent source of discovery and potential evidence for use at trial because supervisors and management may make statements in e mail that would not be placed into written memos or documents.
Federal discovery rules provide that the word “document” includes electronic “data compilations.” The courts interpreting the federal rules of civil procedure have held that e-mails are subject to the same discovery rules as documents. Parties threatened with or involved in litigation have an ongoing duty under the law to preserve information they know is going to be relevant. E-mail creates a tremendous amount of information that an employer might then be obliged to disclose to the opposing side during the “discovery” phase of litigation. Courts have punished employers for deleting e-mails after the threat of or initiation of litigation that might have been useful to the other party at trial.
If an employer’s policy is to delete e-mail files every month, it may not deviate from that policy to defeat discovery by deleting every week. Moreover, once a discovery request has been made, employers have a duty to refrain from deleting e-mails even if it would normally do so under its policy. To prevent the use of e-mail technology in ways that could be adverse to you in litigation, you should institute e-mail use policies and uniformly enforce e-mail use restrictions. Employers should develop a policy regarding preservation of e-mail files as required under the law.
Having a fairly short time frame for e-mail retention when so permitted by law is advisable in terms of discovery or liability because courts have not extended a sympathetic ear to arguments of undue expense and burden in the context of discovery and demand for e-mail production. Thus, having a policy and a systematic way of proceeding on such matters avoids the potentially cumbersome and expensive process of finding relevant e-mail in immense materials on demand. In one Ohio case, for example, a federal district court refused to grant relief to a plaintiff who asserted that such a request would require a search of 2.8 million e-mails/documents, cost more than $80,000, and require hundreds of work hours. Another case involved Proctor and Gamble (P&G) and Amway, fierce competitors in the personal care and home care market. In the midst of a lawsuit, P&G served Amway with broad discovery documents that demanded access to e-mail correspondence. The problem was that P&G failed to retain its own e-mail files for Amway’s discovery purposes. The court, illustrating the point that the practice was unacceptable, forced P&G to pay Amway $10,000, saying P&G’s routine practice of purging its e-mail daily (because the pending lawsuit) was a violation of the federal rules of discovery.
We have attached a summary of policy points to keep in mind that we thought would be helpful.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

WAYS TO PREPARE FOR E-MAIL DISCOVERY IN LITIGATION

Create and enforce an electronic document policy that minimizes the amount of time that the information is retained (as permitted by law) and that addresses what action is to be taken when a lawsuit is threatened or filed.
Enforce the policy in a uniform way. Do not deviate.
When working with the school attorney, create a litigation response that includes a process for preserving relevant data at the outset of litigation.
Do a litigation risk assessment that identifies weaknesses and strengths and potential high-cost areas.
Educate employees and emphasize the need for a business approach to e-mail communications.
For safety’s sake, both the attorney and client should assume that their e-mail will have to be produced in discovery. Thus, unusually sensitive communications should not take place via this medium.

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