Electronic Mail in the Workplace

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Electronic Mail In the Workplace: Litigation Trends For 1997

by Samuel A. Thumma, partner at Brown & Bain, Phoenix (E-mail: thumma@brownbain.com)

I. Introduction.
Electronic mail ("e-mail") usage has exploded over the past several years and promises to continue to expand in the coming years. By 1996, there were approximately 20,000,000 e-mail users in the United States.⁽¹⁾That number is projected to double in four years, resulting in more than 40,000,000 e-mail users in the United States by the year 2000.⁽²⁾ Conservative estimates suggest that an average e-mail user sends 1,500 messages per year or six e-mail messages every work day.⁽³⁾ Taken together, these estimates suggest that more than 20,000,000,000 e-mail messages will be sent in the United States in the year 2000.
E-mail usage is particularly prevalent in the workplace, where nine of ten employers with more than 1,000 employees have e-mail systems.⁽⁴⁾ These companies, as well as smaller companies using e-mail, can generate an enormous number of messages. For example, a company with 100 employees who each send six e-mail messages per work day yields 150,000 messages per year. This pervasive use of e-mail, coupled with the perception that e-mail is both informal and confidential, results in some astonishing (as well as shocking and appalling) e-mail messages sent in the workplace. Not surprisingly, litigators have discovered that e-mail messages can be a gold mine, or a nightmare, depending upon the party they represent. As a result, there has been a dramatic increase in the number of published judicial decisions where e-mail has played a significant role (the number of "e-mail cases").
This article focuses on such cases, starting with a brief history of e-mail in litigation and then discusses the general subject matter areas of e-mail cases decided in 1997. Highlighting the cases arising in the employment context--which made up half of all e-mail cases decided in 1997--the article then focuses on the general areas in which those employment cases arose and highlights some particularly interesting cases. The article concludes with a brief discussion about the future use of e-mail in litigation.
II. The History of E-mail in Litigation.
Decided in 1981, ironically, the first e-mail case involved the United States Postal Service. See Governors of United States Postal Serv. v. United States Postal Rate Comm'n ("Governors").⁽⁵⁾ That case arose out of a bulk computer-generated mail system where a computer sent e-mail messages to "a specially equipped post office" and the electronic messages then were "converted by a printer into hard copy" and delivered.⁽⁶⁾ The specific issue in Governors was the "classification" of this bulk mail system, with the court holding that the Postal Rate Commission exceeded its authority in classifying the system "experimental" with a fixed termination date.⁽⁷⁾
After this rather mundane beginning, the number of e-mail cases slowly began to increase. From 1981 (when Governors was decided) through 1989, a recent electronic database search located just 28 generally available state or federal judicial decisions that even mentioned e-mail. By contrast, for 1993 alone, another recent electronic database search captured 29 generally available state or federal judicial decisions that discussed e-mail.
Since 1993, the number of e-mail cases has increased dramatically. For example, in 1997, there were at least 28 generally available e-mail cases decided each quarter, with a total of 125 e-mail cases decided during the year.⁽⁸⁾ Thus, in 1997, there were more than four times the number of e-mail cases in 1993 and more than four times the number of e-mail cases decided in all of the 1980s. The sole common theme is that e-mail played a significant role in each one of these decisions.
III. E-mail Cases Decided in 1997 by Subject Matter Area.
The e-mail cases in 1997 addressed a variety of issues in different subject matter areas. These e-mail cases can, however, be divided into several general areas:
* Nearly five percent (6 cases) addressed attorney regulation issues;
* More than five percent (7 cases) addressed personal jurisdiction issues;
* More than six percent (8 cases) addressed procedural issues;
* More than six percent (8 cases) arose in the criminal law context;
* Twelve percent (16 cases) arose in the commercial law context; and
* Eighteen percent (24 cases) addressed a variety of different issues, from such diverse areas as the Internet and the World Wide Web, child custody, the calculation of the length of a prison sentence/determination of parole, government contracting, insurance coverage, defamation, sanctions for destruction of documents and attorney advertisements.⁽⁹⁾
Without question, however, e-mail cases decided in 1997 arose most frequently in the employment context. In fact, nearly half (58 of 125 cases) of the 1997 e-mail cases involved employment issues.
IV. Employment E-mail Cases Decided in 1997.
The 58 employment e-mail cases decided in 1997 address a wide variety of different issues. There were, however, several issues that arose repeatedly. Predictably, several cases considered purportedly harassing e-mail messages, many of which appeared to be graphic.⁽¹⁰⁾ Courts also addressed e-mail messages from the employment context that physically threatened the addressee.⁽¹¹⁾ Not infrequently, defendants claimed--with limited success--that such e-mail messages were merely "jokes" and could not constitute any actionable harassment or evidence of a hostile work environment.⁽¹²⁾ Undoubtedly, such messages caused much discomfort for defendants when they were attempting to justify their content to a fact finder.
Several decisions involved claims where e-mail use purportedly was relevant to whether an individual or employer had notice of a issue or policy arising in the workplace. ⁽¹³⁾ In fact, one court went so far as to note that plaintiff (an employee) had a "duty to check her e-mail every day" but that she failed to retrieve e-mail "in a timely manner" and, accordingly, upheld the employer's decision to terminate plaintiff.⁽¹⁴⁾
The very fact that an employee was required to or did use e-mail was a basis for a few discrimination claims. For example, several cases addressed discrimination or retaliation allegations based, in part, on a plaintiff's claim that he or she was required to use e-mail when other similarly situated employees were not required to use e-mail.⁽¹⁵⁾ These cases prove that litigators and litigants are not only using e-mail to support traditional employment claims but also to expand the types of claims that may be brought.
V. Selected 1997 Employment E-mail Cases.
There were some particularly interesting e-mail cases in 1997 that merit individual discussion. Contrary to popular belief, it is not just objectively shocking e-mail messages that may be the underlying basis for discrimination claims. For example, in one case, a supervisor sent an e-mail to an employee stating, among other things, that it was "`great to see someone of your age accomplish something like this!!!! You and George Burns are an inspiration to the elderly EVERYWHERE!!!!'" ⁽¹⁶⁾ Apparently offended, the recipient relied on this e-mail message--along with other purported improprieties--in making an age discrimination claim against an employer. Ultimately, the court rejected plaintiff's claim, finding that the e-mail did "not reflect a discriminatory attitude." ⁽¹⁷⁾ Nonetheless, the employer was forced to incur the cost (and perhaps embarrassment) of defending the e-mail in court--an e-mail that may have been intended to be a compliment (and nothing more).
Apart from the content of e-mail messages in the workplace, courts have suggested that using e-mail too much may provide the basis for a harassment claim. For example, one court suggested that a supervisor "spamming" an employee's e-mail account (by sending a large number of annoying but not otherwise improper e-mail messages) could provide some basis for a hostile work environment claim.⁽¹⁸⁾ Courts also addressed disputes arising out of mistakenly addressed e-mail, a large number of personalized e-mail messages and e-mail sent to an employee's home.⁽¹⁹⁾ Another decision addressed a claim that individuals were discharged because they improperly used their employer's e-mail system.⁽²⁰⁾ And one court was asked to scrutinize a defendant's decision to terminate plaintiff when, among other things, plaintiff "refus[ed] to communicate with [her supervisor] except by e-mail."⁽²¹⁾
Not only is e-mail use the subject of litigation; destruction of e-mail surfaced as a basis for a discrimination claim. Specifically, one court considered a race discrimination and harassment claim where, "[a]s part of this harassment, [plaintiff] alleges that the defendants erased [plaintiff's] electronic mail files." ⁽²²⁾Particularly if the employer was put on notice of the claim before the erasure and the files could not be obtained elsewhere, such erasure could leave an employer open to a spoilation of evidence claim as well as monetary (or other) sanctions.
In what may become a last defense against a claim arising out of a purportedly improper e-mail, another case involved an e-mail fabrication claim.⁽²³⁾ Specifically, the defense offered was that e-mail messages "had been created by someone `manipulating' the e-mail system."⁽²⁴⁾
Nor is it just invidious discrimination claims that arise out of e-mail use in the workplace. E-mail can implicate other employment issues, including traditional labor law issues as well as improper contact with litigants. One case addressed a claim that an e-mail--which told employees that they "could not wear union pins or buttons on their uniforms"--constituted an unfair labor practice.⁽²⁵⁾ In another case, plaintiffs (including current employees) brought a putative class action against their employer.⁽²⁶⁾ The court in that case considered--but ultimately rejected--a claim that an employer sending e-mail to current employees constituted improper contact with members of the class.⁽²⁷⁾
Finally, these cases show that e-mail does not always help support a plaintiff's claims. In several cases, e-mail messages were offered by the employer to demonstrate that employment decisions were proper and justified.⁽²⁸⁾
The judicial proclamations set forth in e-mail cases decided in 1997 may embolden disgruntled employees to make new and previously unheard of claims, relying on the technology or content of e-mail in the workplace. These cases also may embolden employers to take disciplinary action against individuals who misuse the company's e-mail system.
VI. The Future.
As with all forms of data and documents, e-mail can play a role in virtually any case. E-mail undoubtedly will continue to be a source of smoking guns undercutting, evidence showing or contemporaneous justification supporting a great many actions in a wide variety of disputes.
The 1997 e-mail cases in the employment context show that e-mail messages, like any other purportedly harassing communication, can provide the basis for discrimination claims. However, these cases also show that the very use and administration of an employer's e-mail system or policy may be at the core of a discrimination claim.
As with all issues regarding employee use of an employer's equipment, these cases clearly show the need for a well thought out e-mail usage and retention policy.⁽²⁹⁾ The ease of use, perceived confidentiality and perceived lack of permanence makes e-mail a prime medium for communications that are improper in the workplace. This is particularly true where, in many work environments, e-mail has become the modern day equivalent of stereotypical water cooler gossip. E-mail, however, is in writing, is potentially permanent, has varying degrees of confidentiality and can be sent literally to the world over the Internet. Wise corporate counsel and human resource directors will plan ahead to account for and potentially avoid the pitfalls that e-mail in the workplace can create. The first step toward that goal is a well thought-out, written, publicized and enforced corporate policy regarding e-mail usage and retention.
In short, these 1997 e-mail cases provide only a glimpse into the types of cases that creative litigants and litigators may bring based, at least in part, on e-mail. Only time will tell the bounds of the creative (and oftentimes powerful) purposes to which e-mail can be put in litigation.

Samuel A. Thumma
Brown & Bain, P.A.
2901 North Central Avenue
P.O. Box 400
Phoenix, Arizona 85001-0400
(602) 351-8338

Footnotes
1. Anthony J. Dreyer, Note, When the Postman Beeps Twice: The Admissibility of Electronic Mail Under the Business Records Exception of the Federal Rules of Evidence, 64 Fordham L. Rev. 2285, 2288 (1996).
2. Id.
3. Id. These estimates clearly are conservative. For example, in 1994, employees of the Kodak Company alone were reported to have sent more than 1,000,000 internal e-mails each day. See Frank C. Moffis, Jr., Issues from the Electronic Workplace E-Mail Communications: The Developing Employment Law Nightmare, SBO7 ALI-ABA 335,345 & n. 36 (1996) (citing Daily Labor Report, Oct. 7,1994).
4. Dreyer, supra note 1. at 2288.
5. 654 F.2d 108 (D.C. Cir. 1981).
6. Id. at 110.
7. Id. at 117.
8. See generally Samuel A. Thumma, What You need to Know About Recent E-mail Cases Internet Newsletter, June 1997 at 10 (first quarter 1997 e-mail cases), Samuel A. Thumma, What You need to Know About Recent E-mail Cases, Internet Newsletter, Nov. 1997 at 7 (second quaner 1997 e-mail cases); Samuel A. Thumma, Employment Dominates 3d Quarter E-mail Cases, Internet Newsletter, Dec. 1997 at 10;
9. For a more detailed discussion of these cases, see the authorities cited in footnote 8 above.
10. See, e.g., Wilson-Simmons v. Lake County Sheriff s Department, 1997 WL 690093, at *1 (N.D. Ohio Oct. 22, 1997) (race discrimination and retaliation case where plaintiff claimed that other employees used employer's e-mail system "to make racial slurs against her"); Vicarelli v. Business Int'l. Inc., 1997 WL 529757, at *1 (D. Mass. Aug. 22, 1997) (sex discrimination case in which plaintiff alleged harassment by her supervisor, who purportedly sent " `sexually charged e-mails and letters to her home’”); Rudas v. Nationwide Mut. Ins. Co., 1997 WL 11302 (E.D. Pa. Jan. 10, 1997) (court described "graphic e-mail messages stating [a supervisor's] sexual desire for plaintiff coupled with his evaluation of her physical attributes").
11. Williams v. Bayer Cog., 1997 WL 693070, at *2, *5 (D. Conn. Oct. 27, 1997) (after considering “threatening e-mail" plaintiff sent to a co-worker, court found that employer reasonably concluded that plaintiff would “`present an untenable risk to the safety and productivity of other . . . employees’”); Brill v. Lante Corp., 119 F. 3d 1266, 1268, 1271 (7th Cir, 1997) (sex discrimination case in which plaintiff sent e-mail describing another employee as "an 'idiot' and an 'asshole' and said he should be shot"),
12. See, e. g., Hickey-McAllister v. British Airways, 978 F. Supp. 133,136 (E. D. N. Y. 1997) Owen v. Morgan Stanley & Co., 1997 WL 403454, at *1 (S.D.N.Y. July 17, 1997); May v. Teleservice Resources, Inc., 1997 WL 222906 (N.D. Tex. Apr. 29, 1997).
13. See, e.g., Jenkins v. Department of Veterans Affairs 1997 WL 758777, at * 1 (Fed. Cir. Dec. 10, 1997); Angleton v. Beech Aircraft Corp., 1997 WL 446262, at *2 (D. Kan. July 30, 1997). DiFrank v. Neely, 1997 WL 330633 (9th Cir. June 11, 1997); Kelly v. UHC Management Co., 967 F. Supp. 1240, 1249 (N.D. Ala. 1997); Edmond v. Fujitsu-ICL Sys. Inc., 1997 WL 118406 (N.D. Tex Mar. 5, 1997).
14. Farmer V. Continental Ins. Co., 955 F. Supp. 970, 973, 977 (N.D. Ill. 1997).
15. See, e. g. Day v. Northern Indiana Pub. Serv. Co., 1997 WL 786749, at *6 (N.D. Ind. Dec. 19, 1997); Whitten v. Employment Sec. Dep’t, 1997 WL 688869, at *1 (Ark. Ct. App. Oct. 29, 1997); Patel v. Allstate Ins. Co., 105 F.3d 365 (7th Cir. 1997).
16. Ellison v. Premier Salons Int'l. Inc., 981 F. Supp. 1219, 1222 (D. Minn. 1997).
17. Id.
18. Griswold v. Fresenius USA, Inc., 978 F. Supp, 718, 728 (N.D. Ohio 1997).
19. Greenslade v. Chicago Sun-Times, Inc., 112 F. 3d 853, 857-58, 864 (7th Cir. 1997) (reverse discrimination case noting that one co-employee received "more personal e-mails from [plaintiff] than from anyone else" working for her employer and noting "mistakenly sent" e-mail as well as an "excessive number of personalized e-mails"); Vicarelli v. Business Int'l. Inc., 1997 WL 529757, at *1 (D. Mass. Aug. 22, 1997) (noting “sexually charged e-mails and letters [sent] to [plaintiffs] home”).
20. Cerwinski. v, Insurance Servs. Office, Inc., 112 F. 3d 503, 1997 WL 234672 (2d Cir. 1997) (mem.) (noting administrative finding of no discrimination and that plaimtiff "`was discharged because of improper use of E-mail’” as well as making unfounded claims), cert. denied, 118 S. Ct. 374 (1997); accord McNeel v. Public Serv. Co. of Colo., 1997 WL 383355, at *1 (10th Cir. July 11, 1997) (noting that plaintiff "was suspended for one day following his dissemination of an offensive e-mail message containing religious and sexual comments about his supervisor").
21. Powers v. Dallas County Community College Dist.., 1997 WL 446442, at *6 (N. D. Tex. Jul. 16, 1997),
22. Skeete v. IVF Am. Inc., 972 F. Supp. 206, 208 (S.D. N.Y. 1997).
23. Lumpkin v. Brown, 960 F. Supp. 1339 (N.D, Ill. 1997).
24. Id. at 1342.
25. Meijer, Inc. V. NLRB, 130 F. 3d 1209, 1211 (6th Cir. 1997).
26. Burrell v. Crown Central Petroleum, 1997 WL 662536, at *1 (E.D. Tex. Oct. 21, 1977).
27. Id.
28. Duncan Young v. Pine Street Inn, 1997 WL 136337 (D. Mass. Feb. 24, 1997); Coover v. Saucon Valley Sch. Dist., 955 F. Supp. 392 (E.D. Pa. 1997); Jenkins v. Department of Veterans Affairs, 1997 WL 758777, at *1 (Fed. Cir. Dec. 10, 1997).
29. See generally Patricia R. Hubbard & Samuel A. Thumma, E-Mail Can Deliver Legal Problems. Ariz. Bus. Gazette Oct. 17, 1996 (Employee Relations Supp.).

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