I regularly train workplace managers on how to create and foster respectful workplaces. Managers often focus on in-person behavior – racial comments, sexual gestures, inappropriate digital images and items displayed in the workplace. (Yes, all of this workplace conduct still occurs in 2015!) In our current world of electronic workplace communication, what cannot be forgotten is the probative value of a manager’s email communications, those that are work related and those that are not.
I recently read a federal court decision on e-discovery matters in a case in which a female plaintiff claimed workplace discrimination and retaliation. To support her claim, she subpoenaed decade-old emails from her boss (from when he worked for a different employer). Supposedly, these emails contained sexually explicit material and, thus, could reveal his attitude toward female employees.
The employer sought to quash the subpoena. However, the judge denied his motion, because the rules of discovery in litigation are broad and “while material must be discoverable in order to be admissible at trial, it is not necessarily admissible simply because it is discoverable. Discovery must only be reasonably calculated to lead to the discovery of admissible evidence.”
Therefore, according to the Court, this request of a prior employer was fair game for discovery:
Through these emails, [the plaintiff] seeks to discover whether [boss] engaged in inappropriate behavior during his former employment. She reasons that this information is relevant and discoverable because it illustrates [boss’s] attitude about females in the workplace, which allegedly influenced his decision to terminate her employment. With this explanation in mind, the Court cannot conclude that the requested documents are not reasonably calculated to lead to the discovery of admissible evidence. [Boss’s] concerns about the age, origin and context of these emails may very well affect their admissibility in later stages of the litigation, but they are not grounds to bar discovery of these documents altogether.
There are a couple lessons to be learned from this Court’s order. First, an employee’s emails are part of their work DNA and can be discovered, even after the employee has left the employer. Second, communications generated on a work email system (even if not related to work) are subject to discovery and can be obtained.
Workplace leaders should often remind their teams of the importance of discretion in email communications, at all times. Personal opinions and biases should not be reflected in workplace email communications, even those of a personal nature. Employees and leaders are free to have personal opinions and biases – but they should be kept at home and on the home email system!
If you need assistance in providing training to your employees on this or other employment topics, give us a call!
Anne B. Wilde, J.D