Technological Advancement?
The Hidden Pitfalls of Electronic Communication in Litigation

By Michael G. Kline, Esq.

With the advent of the internet and the rapid development of modern technologies, the business communication landscape has undergone an enormous transformation in a relatively short period of time.

In an environment where paper communications once ruled the day, companies are becoming more and more reliant on use of electronic means of communication, such as email. Although these message-sending methods provide business owners with unparalleled expedience and efficiency, they are not without their pitfalls.

In handling and managing a variety of litigation-based matters, attorneys at Roxborough, Pomerance & Nye have noticed an alarming amount of electronic communication that is treated far more informally than the old-fashioned letter or memo. This lackadaisical approach to communication which—if made in the course and scope of employment will likely be legally attributable to the employer by virtue of the legal doctrine known as “respondiat superior”—should be the subject of great concern for every employer, from the smallest of operations to nationwide powerhouses.

First and foremost, employers are advised to make every effort to promote an understanding amongst employees that email is a much more permanent medium of expression than is its customary perception. While many employees may believe that once an email is sent into the ether, the message contained therein is likewise removed from the employer’s auspices, nothing could be further from the truth. Not only are such messages routinely indexed and maintained on that employee’s personal workstation, they are most likely archived in the company’s main database or server as well.

“Indeed, email and other forms of electronic communications (think instant messaging) are well within the reach of a subpoena...”

Perhaps even more troubling, moving that nasty email to the “trash” doesn’t solve the problem. Forensic computer consultants are routinely engaged during litigation to examine computer hard drives and recover damaging emails that both employer and employee assumed were gone forever. In a manner of speaking, electronic communications are even more permanent than their physical counterparts ... even when you delete a file, it really isn’t eliminated from your computer.

To that end, electronic communications, and email in particular, should be treated less like “conversation,” and more like “correspondence.” With the above understanding in mind, an employee is less likely to express thoughts and opinions that would otherwise be excluded from written communications, and therefore from utilization by an opposing party in litigation. In the workers’ compensation context, RPN attorneys are finding it more and more likely that communications that would ordinarily be kept between attorney and client (and therefore privileged) are being included in emails that are, in an ironic twist, “carbon copied” to others such as third-party administrators.

By treating electronic communications in such a fashion, the sacred attorney-client privilege has been inadvertently rendered moot, all with a few simple keystrokes. Indeed, email and other forms of electronic communications (think instant messaging) are well within the reach of a subpoena or simple discovery demands during the litigation process.

Admonishments aside, the computer sitting on your desk is not a doomsday machine of potential liability. When treated with an appropriate amount of understanding, technology enables companies to be faster, and more profitable, than ever before. Yet it is important for employers and employees alike to understand that advancements such as email and instant messaging provide far more pitfalls than older methods of communications; they should therefore be treated with the appropriate amount of caution to avoid the dissemination of otherwise confidential information.

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