E-mails: 'Smoking Guns' in Employment Litigation

However, the significance of e-mail traffic is not limited to investigations of securities law violations. E-mails are also a fertile source of evidence of employee wrongdoing in situations involving sexual harassment, discrimination, and other inappropriate activity at work. Examples abound of employees instant messaging each other their opinions about bosses and co-workers, their sexual desires, or about just plain boredom. The New York Law Journal recently reported that a Harvard Law student at a $2500-a-week summer job at Skadden Arps learned a lesson the hard way when he inadvertently sent an e-mail intended for a personal friend to the law firm's entire corporate department. As a result, everyone in the entire legal community became privy to his irreverent and profane description of his 2-hour sushi lunch and the absence of significant legal work to do.

The informal banter, frequent e-mailing, and instant text messaging on cell phones and Blackberries while employees are at work has had a significant impact on workplace investigations and employment litigation. Typically, discriminatory attitudes and motivations are shared privately in subtle and often unspoken ways. Previously, employee complaints brought to Human Resources that included “he said/she said” allegations were difficult to investigate and to resolve without documentation or witnesses. Now, e-mails can corroborate or negate the stories of the complaining party and the accused. As employees have let their guard down in corporate e-communications, they may reveal sexual desires, romantic preferences, and stereotypical commentary – all discoverable evidence if an employee later complains about inappropriate conduct either during internal grievance processes or in litigation against the company.