The “New” Evidence. . .Email And Other Electronic Communications Can Define A Company’s Defense In An Employment Discrimination Lawsuit

By Rachel Hulst

Email has been a primary source of communication in the business space for nearly 15 years.  Today, most of us receive and respond to dozens of emails a day.  We use it constantly, to chat with coworkers, to spell out work assignments, to receive information from colleagues across the country and to document key events.  So, why is it when an employee sues its company for employment discrimination, the documentary evidence gathered rarely includes all emails of all the key witnesses in the case?

There are many reasons for this:

  • Despite our many years of using emails as a form of communication on employee matters, emails are not viewed as “employee files” and thus, companies don’t always think about their relevance when an employee sues.  In fact, it is those emails about nothing that often contain the most helpful information in these types of suits.
  • We assume that all “important” emails regarding an employee would’ve been sent to his/her personnel file;
  • Even when searching for emails, it is easy to miss some; logistically, email threads are often intertwined—individuals are added and removed and new threads are spawned off.  Information that may be included in one thread could often be missing from another.
  • Often such emails don’t exist: employees get so many emails a day, many feel the need to delete and get rid of them.

But this needs to change.  Emails (along with the more recent culprits—mobile texts, instant messages and communications through social networks) are crucial to an employer’s defense in these types of cases. They can set the timeline of events, provide key information needed to understand what actually happened or they reveal very troublesome communications.  Providing counsel with all potentially relevant emails at the beginning of a lawsuit can ensure the best defense.  More often than not however, emails trickle in months or even years into litigation.  Finding out newer facts or damaging information that late in the game can be extremely detrimental to a company’s defense—even if, those facts are good for the company. Words read in an email can often be the ones that make or break a case.  While we are casually and quickly pressing “send”, it is very easy to forget that our words could later be blown up on a screen to be read before a jury at trial.

Tips for employers to ensure effective use of electronic communication:

  1. Instruct all managers to save emails related to employee personnel matters by putting the emails in the employee’s personnel file, or even better, creating their own separate file on the employee;
  2. Implement company policy on texting and messaging with coworkers and employees on work related matters to attempt to gain some visibility into those communications;
  3. Since #1 may not be possible in all circumstances, archive and back up emails, instant messages; save those backups even after employees leave for a safe period of time;
  4. When managers depart from the company, question them about any emails or files they may have related to personnel matters;
  5. Watch your words: employees may communicate casually on email regularly but they need to remember that this is work—emails can be misconstrued and ultimately lead to harassment suits.  Or even worse, an email with helpful information that also insults a plaintiff could render the good stuff unusable.

Ultimately, when sued, survey all the culprits—anyone who knew the plaintiff employee must search emails for any communications with that plaintiff.  You never know what you’ll find.