How can you handle e-mails in a way that a court ought to accept?
Companies need to require organization. Each and every employee needs to file away e-mails, just like they do with paper documents in a filing cabinet. And filing e-mails is even easier than filing paper documents. With a click of the mouse, you can create folders and subfolders in your e-mail program and drag e-mails into those folders. You can even do this officewide with file-sharing software.
And employees need to dispose of e-mails when appropriate. There is no reason why employees cannot be trusted to do this; they do it with paper every day. Employees simply need to be asked to handle e-mail like they handle paper, including exercising the same discretion that they’ve always exercised in the ordinary course to file and dispose of things.
Litigation hold procedures still need to be strictly followed to preserve information that may be subject to discovery in litigation, but that doesn’t mean that e-mail needs to be treated any different than paper. In short, courts have always tolerated the human element that is part of all hard copy document handling in the workplace and in the discovery process. There’s no reason to believe that judges will not permit litigants to deal with electronic documents in this very same manner. And, as the alternative becomes more and more burdensome, there is every reason to believe that courts will tolerate it.
What do you do if not all employees comply with this directive?
This has benefits even if everyone doesn’t do it. Like anything, you’ll get some employees to organize their e-mails more diligently than others. But every employee who keeps things in order is one fewer employee whose e-mails will have to be dumped and searched.
What else should employers tell their employees about e-mail?
Teach discretion and responsibility. You don’t always have to be on your BlackBerry, firing off every thought that comes to mind. Before you click ‘send,’ consider whether you want to be creating this record and whether the message can be communicated more efficiently by phone or in a meeting. If you require that all e-mails be filed, your employees should naturally be inclined to be more careful about what they send in the first place.
What are the consequences of not filing e-mails?
The task of identifying and producing relevant e-mails is overwhelming and expensive, so much so that a client may ask its lawyers to take short cuts in the review process. But if you do that, it could lead to the unintended release of confidential, privileged, irrelevant and/or embarrassing information. And if that weren’t bad enough, the money the client was hoping to save may be spent anyway in motion practice fighting to recover documents that never should have been produced.
Litigating can be expensive, and clients and lawyers need to recognize and take advantage of opportunities to manage costs whenever possible without compromising quality. Organizing e-mail is a no-brainer, because it’s something you should be doing anyway. And, for those who needed one more compelling reason to take on the imposing task of cleaning up your electronic junkyard, now you have it. It can reduce your legal bills.
John F. Shonkwiler is a partner with Novack and Macey LLP. Reach him at (312) 419-6900 or jshonkwiler@novackmacey.com.
