by  Samuel A. Thumma and Darrel S. Jackson, attorneys at Brown & Bain in Phoenix,

E-mail for Mr. Thumma: thumma@brownbain.com

E-mail for Mr. Jackson: jackson@brownbain.com

I. Introduction.

Electronic mail usage continues to grow and expand. This easy, quick and inexpensive form of communication is rapidly replacing both the telephone call and the letter or memorandum as a primary means of communication in the workplace and elsewhere. By 2000, conservative estimates predict that there will be 40 million e-mail users in the United States. If each of those users sends a dozen e-mail messages every work day, more than 120 billion e-mail messages will be sent next year in the United States alone. And e-mail usage promises to continue to expand in the future.

E-mail usage is particularly prevalent in the workplace, where most major employers have e-mail systems. This pervasive use of e-mail, coupled with the perception that e-mail is temporary, confidential and informal, results in some shocking and amazing e-mail messages sent in the workplace. Not surprisingly, attorneys and litigants have discovered that e-mail messages can be a gold mine, or a nightmare, depending upon the position they want to take. The result is a dramatic increase in the number of generally available judicial decisions where e-mail has played a significant role ("e-mail cases").

This article provides an overview of 1998 e-mail cases, with a particular focus on the cases arising in the employment context, which made up more than 40 percent of all e-mail cases decided in 1998. The article focuses on the general areas in which those employment cases arose and highlights some particularly noteworthy 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.

The first e-mail case was decided in 1981, ironically in a matter involving the United States Postal Service. From 1981 through 1989, an electronic database search located just 28 generally available state or federal judicial decisions that discuss e-mail. By contrast, for 1993 alone, another 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. In 1997, there were 125 e-mail cases decided. In 1998, there were a total of 150 e-mail cases, with at least 29 generally available e-mail cases decided each quarter during the year. The sole common theme is that e-mail played a significant role in each one of these decisions.

III. E-mail Cases Decided in 1998 by Subject Matter Area.

The e-mail cases in 1998 addressed a variety of issues in various subject matter areas. Breaking these e-mail cases into several general areas:

* More than 20 percent (30 cases) arose in the commercial law context and addressed issues such as the rights and responsibilities of internet service providers, trademark infringement, contract disputes and other matters;

* Approximately 11 percent (17 cases) addressed various procedural issues;

* More than 10 percent (16 cases) addressed personal jurisdiction issues;

* Nearly 9 percent (13 cases) arose in the criminal law context; and

* Eight percent (12 cases) addressed a variety of other issues, from such diverse areas as attorney discipline, customs issues, pharmacy sanctions, tax and civil rights issues, involuntary commitment and first amendment issues.

Without question, however, e-mail cases decided in 1998 arose most frequently in the employment context. In fact, more than 40 percent (62 of 150 cases) of the 1998 e-mail cases involved employment issues. Those cases help provide some guidance about good employment practices for e-mail use in the workplace.

IV. Employment E-mail Cases Decided in 1998.

The 62 employment e-mail cases decided in 1998 address a variety of issues. There were, however, several issues that arose repeatedly.

E-mail can be both helpful and harmful to employers faced with discrimination claims. In one 1998 case, an employer defending against race discrimination claims pointed out that all employees had equal access to job openings, showing that notices for such openings were sent by e-mail to all employees. In another case, the court was persuaded by evidence that a supervisor usually provided e-mail notice of job openings. These cases show that, where access or even-handed actions toward all employees may be a helpful defense, a court may be persuaded by evidence of an employer's fairly administered e-mail system.

An employer's e-mail system also must take into account each user's special needs. For example, one court struggled with a disability discrimination claim based on an allegation that an employer required every employee to use e-mail but that the plaintiff's vision impairment prevented such use. On appeal, a divided court reversed a verdict for plaintiff on a reasonable accommodation claim but affirmed a verdict for plaintiff on her claim of differential treatment because of her disability.

At times, e-mail has become a crutch for individuals who have difficulty dealing with others in person or on the telephone. In 1998, courts addressed just such situations. In one case, the court noted that a supervisor Aavoided verbal communication with [plaintiff] and instead used electronic mail." In another case, a court noted that a supervisor's interaction with plaintiff usually was limited to Aemail or telephone.@ In a gender and national origin discrimination case, yet another court noted that a defendant alleged, among other things, that plaintiff Afailed to communicate effectively through interoffice e-mail.@ These cases confirm that, although e-mail may be an effective way to insulate individuals who simply cannot get along with each other, exclusive reliance on e-mail cannot displace good personnel management. Moreover, although the failure to communicate effectively through e-mail may be a reason to terminate an employee, wise employers should offer e-mail training and use assistance if reasonably necessary to help ensure effective job performance.

Apart from effective use of e-mail, most e-mail systems allow an employer to determine whether employees are actually opening their messages. In one case, part of the evidence supporting a termination decision was an assertion that plaintiff failed to open two-thirds of her e-mail. Clearly, in a paper memorandum era, this type of information would not have been available to the employer. However, employees should cautiously rely on access to such information. The best way effectively to be able to use that information in litigation is where a written e-mail use policy authorizes just such action.

In 1998, courts continued to address employees' claims that they were either denied access to their e-mail accounts or that e-mail they purportedly sent was falsified. Access to e-mail accounts generally can be controlled by password protections and other common-sense security measures or e-mail usage training. Again, an e-mail use policy can help clarify such issues before any dispute arises.

V. Selected 1998 Employment E-mail Cases.

There were some particularly interesting e-mail cases in 1998 that merit individual discussion. One employer successfully defended against a claim that it was negligent for allowing purportedly "racially harassing" e-mail on its system by pointing to its corporate e-mail policy. Specifically, the court noted that defendant "had an established policy regarding the use of e-mail," had posted the policy so that employees were aware of the policy and held two meetings with employees to discuss that policy. In another case, a defendant employer pointed to (and the court relied upon) a written policy "against sexual harassment, including sexual harassment via e-mail." This approach echoes other cases from 1998, and again reinforces the need for a well-reason, written, published and implemented e-mail use and retention policy.

1998 e-mail cases confirm the need to retain e-mail during litigation that may contain relevant information. In one case, the court granted in part a motion for sanctions, noting a party was under a duty to save certain "e-mail communications during the pendency of this litigation" but failed to do so for a period of time.

Recent cases further suggest that restricting an employee's access to e-mail may result in retaliation or discrimination claims. In one case, a plaintiff claimed disparate treatment because she was prohibited "from using various agency resources (such as e-mail) for personal reasons." And in another case, the plaintiff alleged retaliation because, inter alia, "she was counseled for sending e-mail messages."

Courts also continue to recognize that employers have a legitimate interest in policing their own e-mail systems. In one case, the court rejected plaintiff's claim that an employer's Acomputer lock down,@ which temporarily prevented plaintiff from using e-mail, constituted an adverse employment action. Rather, the court recognized that e-mail use can be regulated by an employer and that the Acomputer lock down@ did not adversely affect plaintiff's employment. Another court found that an employer's decision to terminate plaintiff for, among other things, sending e-mail with inappropriate sexual content provided a legitimate, non-discriminatory reason for termination. Implicit in these decisions is that improper e-mail use by employees may subject an employer to liability and that an employer may take appropriate steps to protect its interests, including punishing employees for e-mail misuse.

VI. The Future.

Clearly, e-mail may be used in virtually any type of litigation and e-mail undoubtedly will continue to be used in a variety of ways in many types of litigation. That use is bounded primarily by the inventiveness and imagination of litigants and their attorneys.

In the employment context, the 1998 e-mail cases show that, time and again, e-mail and e-mail systems can be problematic for employers. To attempt to avoid such problems, employers should implement and enforce written, well-reasoned, and individualized e-mail use and retention policies. Wise human resources personnel and corporate counsel will continue to insist on, implement and refine such policies. With effective planning and training, such policies should allow e-mail to be used for legitimate business-related purposes while curbing or eliminating improper and potentially actionable e-mail use. Unfortunately, an employer's e-mail system that is not governed by such a use policy may be a ticking time bomb for that employer. As the 1998 cases demonstrate, only time will tell the bounds of the creative and powerful use to which e-mail can be put in litigation.

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