Central to discovery in civil litigation is that parties to a lawsuit must preserve, gather and produce relevant documents. However, this is becoming increasingly difficult and expensive because of the staggeringly high volume of electronic communications in the workplace.
“Discovery obligations are not going away, so it is important for employers to improve emailing habits by teaching discretion and organization,” says John Shonkwiler, a partner at Novack and Macey LLP.
Smart Business spoke with Shonkwiler about forming better emailing habits and organizing email.
How can email habits be improved?
Stop ‘reflex’ emailing. Too often, we give in to the almost reflexive urge to respond to email immediately. This is the texting culture invading the workplace, which is an environment that demands better judgment. It is not inconsiderate or unprofessional to deliberate before responding to email. Sometimes just waiting 10 to 15 minutes can make a big difference. Except in those rare instances where an urgent response is called for and cannot be made by phone, people should not fire off immediate responses.
Why is ‘reflex’ emailing problematic?
As email volume increases, exacerbated by reflex emailing, so does the cost of electronic discovery. Hasty email responses so often can be inconsequential and can reflect poor judgment, convey inaccurate information, or contain sarcastic or flippant remarks that don’t translate well on paper. These things make for bad documents in litigation. Think of every email like a potential trial exhibit. Ask yourself, if you were on the witness stand, would you like to be confronted with this?
How should employers teach employees about using better discretion?
Formal training should not be necessary. Just ask employees to place a higher value on their email correspondence. Cut out the reflex emailing and start treating email like paper — as if you were sending a letter on your company’s letterhead. And consider that your message might be better delivered in person or over the phone. How does organization help?
Email can be organized like paper correspondence. This means deleting the email you don’t need and organizing the messages that you keep into folders.
This makes it far easier and cheaper to find and gather relevant email in response to discovery requests. When email is not organized, a litigant often has no choice but to dump massive quantities of email from servers and then use electronic term searches to cull through the data, which is expensive. Also, when every email must be accounted for and filed, or deleted, the sender tends to place a higher value on each email, give greater care to the contents and more carefully consider whether a message needs to be sent in the first place.
For people who have never organized their email, how can they get started?
When implementing new habits, it is easiest to start with a clean slate. If the task of sorting through every email in your inbox is too imposing, just move the entire contents of your Inbox into a folder titled ‘My Inbox as of [date].’ You can do the same with your sent items. This way, you can start clean and use your new habits going forward without losing access to your old emails. How has the law dealt with email discovery?
The courts have been active in the area of electronic discovery. In 2006, the federal rules were amended to more fully address e-discovery, and the U.S. Court of Appeals for the Seventh Circuit has its own e-discovery pilot program. However, little discussion has focused on the root of the problem, our emailing habits. This will change as employers continue to learn about the significant costs of housing massive amounts of unorganized email. Is deleting old emails a solution?
Manual deletion of emails is safe and appropriate when used with the same discretion and care that’s used when handling paper, including adherence to all litigation hold directives. Deletion becomes problematic when it is done electronically or indiscriminately. The better practice is to keep email in order. Then, there is no need for mass, indiscriminate deletion. ●
John Shonkwiler is a Partner with Novack and Macey LLP. Reach him at (312) 419-6900 or firstname.lastname@example.org
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