Local papers ran an eye-catching story recently about a “smiling and smartly dressed middle-class couple” that nearly died trapped beneath a mountain of stuff that had accumulated in their home over the course of many years.
We marvel at stories like these and wonder how anyone could make this big of a mess. And yet, “a surprising number of us who work with business organizations or professional service firms in offices that are otherwise orderly let e-mails just pile up in our inbox, sent folder and trash bin,” says John F. Shonkwiler, a partner with Novack and Macey LLP. “Don’t do this. It is not a smart business practice and, if your company becomes involved in litigation, it can cost an awful lot of money to sort through the mess. Every person in your office should be encouraged to organize their e-mails, just as they organize paper documents.”
Smart Business spoke with Shonkwiler about how keeping e-mails neatly organized and cataloged can save you money and time, especially should you ever be involved in litigation.
What happens with e-mails that are subject to discovery in litigation?
Over the past decade, as litigators have tried to get their arms around electronic communication and how to handle it in terms of discovery applications, the ‘dump and search’ method has become common. In litigation, dump and search refers to the way information is obtained from the litigants, when massive amounts of data and information are dumped off of a server without any discretion. It is then transferred to where it can be electronically scanned and searched using search terms related to the litigation. Once that data is gleaned, a manual search is done for relevance and privilege.
Needless to say, the time and expense required to perform the dump and search process is typically proportionate to the size of the e-mail data dump in many cases, massive not the least of which is lawyers’ fees for reviewing the (often still massive) quantity of e-mail identified by the term search process. Then, even after that process is completed, the e-mails usually have to be processed and converted by a vendor so that they’re compatible with litigation software.
This is a long and complicated process for just one person’s e-mail. When you have to gather and produce several employees’ e-mail, it can easily take several months to perform the dump and search process. Perhaps the scariest part is that the quantity of e-mail generated in the workplace is only growing as we continue to develop into a community of BlackBerry and smart phone addicts. Because the process is expensive and burdensome, courts must be receptive to alternatives.
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 firstname.lastname@example.org.