If caution is not exercised, email communications can be devastating in a lawsuit.
“Never write if you can speak, never speak if you can nod, never nod if you can wink.” The words of 19th-century Boston political boss Martin Lomasney have never rung more true than in today’s modern age of email communications. More than ever, the words we type in the ubiquity of our daily emails run the risk of eventually becoming available for public consumption. Beyond the embarrassment and bad press to which the public disclosure of certain internal written communications can lead, lies the potential for such written communications to be used by an adversary in litigation.
A Case Study
With the exception of certain limited circumstances, written internal business communications can be discoverable in subsequent litigation. The Seventh Circuit Court of Appeals recently issued a decision which perfectly illustrates the consequences that can result from employees’ written communications.
In that case, an employee who was an Army Reservist filed a lawsuit against her former employer asserting claims of discrimination and retaliation. According to her employer, the basis of her firing was for violations of the company’s attendance policy; however, the employee averred that the real reason was discrimination based upon her military service.
In support of this assertion, the plaintiff cited several emails distributed among various staff members at her employer which made reference to the plaintiff’s military service and otherwise discussed whether she could be disciplined for taking too much time off for military reserve duty. The court held that the emails could have supported a jury finding that the plaintiff was fired because of improper discrimination. More than likely, in the absence of such written communications, the court would have reached another conclusion.
The emails were considered by the court because they were produced in the “discovery” process of the litigation. After a lawsuit is filed, a plaintiff has the ability to request written documentation relating to the claims being alleged in a lawsuit. To be discoverable, it makes no difference whether the communication occurred via hard-copy papers or email. Because email communication facilitates nearly effortless communication, it is this type of communication about which employees and employers must be the most cautious.
Conditions for Attorney-Client Privilege
While emails among and between employees will almost certainly be discoverable in litigation, where email communications are directed from an employee to an attorney for legal advice, the communication may be privileged from disclosure under the attorney-client privilege. However, not all communications with your attorney are privileged. The privilege is limited to only certain communications by certain persons within an organization to a legal professional.
In order for the attorney-client privilege to apply: (1) legal advice must be sought; (2) from an attorney in his or her capacity as such; (3) the communication must relate to that purpose; and (4) the communication must be made in confidence that it would not be disclosed; (5) by the client, unless the client chooses to waive the privilege. Moreover, simply cc-ing your attorney as an “FYI” does not invoke the privilege unless the email is ultimately used to obtain legal advice. When a string of emails that is not privileged is forwarded to the attorney, privilege may attach to the entire email chain if the purpose of the email is to transmit facts to the attorney for legal advice. However, routine, non-privileged communications between corporate officers or employees transacting the general business of the company do not attain privileged status solely because in-house or outside counsel is “copied in.”
Furthermore, in Illinois, the privilege only applies to communications between an attorney and members of a company’s “control group.” That is, in order for the attorney-client privilege to apply in a corporate context, a claimant must demonstrate that the statement sought to be protected was made by someone who is a decision-maker or in top management of the corporation, or to those employees who directly advise top management, and upon whose opinions and advice decision-makers rely. In the latter case, the advice must actually have formed the basis for the final decision.
Minimize Potential Impact
Given the limited application of the attorney-client privilege, most email correspondence done in the regular course of business will be discoverable in litigation and thus, possibly made public and/or used in support of a claim made against a business. Of course, documentation and email communications are imperative in the modern business context. Indeed, good documentation of employment and business decisions can be helpful in defending a business in litigation. However, that same documentation and email communication can also be devastating in a lawsuit where caution is not exercised in what and how one is communicating. With that in mind, here are some tips to minimize the potential impact:
- Take a moment to reflect. Just because email is a quick and efficient method of communication does not mean that less thought should be put into what is being communicated.
- Consider your recipients and minimize. Consider the context and only send email to your target audience.
- Label legitimate communications as “Privileged & Confidential – Attorney Client Communication.” Not all communications to your lawyer are privileged, but such a label on potentially privileged documents may help highlight your intention and draw the attention of the reviewing attorney.
- Avoid exaggeration and inflammatory rhetoric. Superlatives and dramatic language may be useful in getting your point across, but may also take on a life of their own in litigation.
- Watch forwards and attachments. These are discoverable too.
- Consider public perception. If possible, don’t write anything you wouldn’t want shown to a jury on an eight-foot screen.
Of course, when in doubt, the safest method is to simply pick up the phone. iBi