Musings about "E
and implications for lawsuits
and other legal claims
Don't overreact - - -
Now that the new2005 federal court rules governing digital documents have begun to settle in, a thought provoking article from last Fall that appeared in the American Bar Association publication "The Labor Lawyer" deserves mention. "Electronic Discovery: Litigation Crashes into the Digital Age," 22 TLL 207.
According to commentator Cameron Schilling, a New England practitioner of labor and employment law, there are five key differences between electronic data and hard paper documents:
1) volume, 2) persistence, 3) dynamics, 4) "environment-dependence", and 5) dispersion.
The fourth item is less important than the rest, for this blog, so I am passing over it.
Volume, of course, refers to the greater mass of information memorialized in electronic form, owing to the ease of creating the digital records and the numerous formats in which they are created and stored. Persistence refers to the sustained existence of electronic stuff, even when "deleted." By dynamic, Schilling means that electronic data can be changed into alternative forms, and reproduced instantly, sometimes without the document's creator or recipient knowing that it was copied (such as being backed up by a server). Finally, a document, whether a personnel file on PDF or an email from a boss to a subordinate, can be kept in any electronic storage medium, e.g., an external hard drive, a PDA, or an iPod.
Because emails exemplify each of these qualities, and continue to burgeon in the workplace, their replacement of face-to-face communication poses serious problems for employment problems that wind up in court.
In an email-free workplace - to the extent such a one exists - A tells B that C is a problem employee because he talks about Jesus too much. But in an email environment, A emails B, writing: "C is a problem in my department. He talks about Jesus too much and it 's a pain in the ass, he really annoys me." Is this the same evidence? Not really. The latter example is a documented fact, obviously, but also, it is in the cold, emotionally flat format of e mail. Juries react to emails like everybody else, and we all know the numerous misinterpretations that they generate.
In addition to the documentation of a potentially discriminatory exchange about an employee, the email format encourages excessive and unedited writing (despite the fact that composition of emails is much slower than speaking). Here the supervisor A need only have emailed B "I have a problem employee I need to talk to you about."
There are economic forces in the corporate world that punish face-to-face and reward e mail. Ours is a predominantly service economy where a large majority of workers spend a significant amount of time in front of a computer, in an organizational setting that demands hurried labor (most of the time) and that naturally causes emails to be sent and received throughout the day. A client told me recently that he averages 200 emails or more a day on his Blackberry.
To avoid this problem, managers need to assure that personnel matters of any potential importance be discussed in person.