Workplace E-mail: Employers Beware!

Less known, but no less important, are the drawbacks and the potential for abuse of e-mail in the workplace, of which every employer should be aware. Just as most people do in their personal lives, employees use e-mail at work very informally. Many employees think nothing of typing an impulsive, colloquial message and hitting Send. E-mail's informality often leads employees to send messages without spell checking or grammar checking the communication, the way that they would in traditional business correspondence. More importantly for an employer, e-mail's informality leads people to write things (inappropriately for whatever reason) in this form of communication that they would never consider typing in more formal correspondence, such as a letter. Furthermore, e-mail's ready distribution can lead to the inadvertent forwarding of messages on a large scale.

Add to this the fact that e-mail, while it can be deleted from a user's mailbox, is often not irretrievable, and the potential liability for employers is exponentially increased because previously whispered communications between employees over the water cooler are now reduced to writing in an e-mail, which likely unbeknownst to the sender and recipient, may be retrievable long after it has been “deleted.” This can be very dangerous for an employer – particularly one which fosters an environment where e-mail is pervasive and the sheer volume of e-mail sent and received by employees on a daily basis is staggering.

Discovery of Electronic Documents

Anyone who has been embroiled in electronic discovery, whether in connection with an administrative agency, such as with the Equal Employment Opportunity Commission (EEOC), or at the litigation phase, in federal or state court, knows that the issue can be a costly one. Merely establishing your company's electronic capabilities with respect to current and past electronic documents and communications, before ever producing a single e-mail, can be a costly endeavor, let alone conducting the actual search for, preserving, and then reviewing, electronic documents in forms ranging from easily accessible formats to highly inaccessible ones requiring costly searches of backup tapes and restoration processes. And, as discussed below, the costs associated with the discovery of e-mails can become even higher where mistakes are made that lead either to the late production of responsive e-mail communications or, worse yet, to their irretrievable loss.

The skyrocketing costs and other problems associated with electronic discovery in the employment context have been the subject of a number of cases across the country in recent years. Courts have struggled with myriad issues relating to electronic discovery in the workplace, requiring an examination of the technology involved, the preservation and availability of electronic documents, the role of counsel in the process, and who should bear the often significant costs of retrieving, reconstructing, reviewing and producing them, in cases alleging employment discrimination, harassment, wrongful discharge, and retaliation.

Zubulake v. UBS Warburg

In one highly publicized action, Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003), an employee sought production of e-mails from her former employer, which she claimed contained key evidence of her gender discrimination and related retaliation claims. It was determined that these e-mails only existed on backup tapes and in other “inaccessible” media that required costly procedures to restore, and the cost of retrieving and restoring the e-mails was estimated at approximately $175,000, exclusive of attorney time reviewing the messages for privilege and relevance.

Zubulake was a single-plaintiff case, albeit involving a highly compensated former employee. The rise in class actions, including those in the employment context, in wage and hour cases brought under the Fair Labor Standards Act (FLSA), and discrimination cases, such as those brought under Title VII of the Civil Rights Act of 1964 (Title VII), can exponentially increase these figures. Some speculate that the potentially exorbitant costs associated with electronic discovery, particularly in the class action context, place unfair pressure on defendant employers, from a strictly economic perspective, to settle even meritless claims.

The growing involvement of e-mail and other forms of electronic discovery in both administrative agency and court proceedings, and the highly technical and costly aspects of compliance with electronic discovery requests, have led to a growing awareness among employers of the “costs” of producing electronic documents in discovery. This trend has also led to a number of companies that market “electronic discovery” products and services to businesses, some specifically to employers, to help them muddle through the technology of electronic discovery to meet their disclosure obligations.

What should not be lost in discussions surrounding the “costs” of electronic discovery is the potential “cost” of the content of the e-mails at the heart of these electronic discovery disputes. Regardless of how the “costs” of the production of electronic documents in discovery are apportioned by the courts, the equally, if not more important issue in cases surfacing around the country, is just what impact the e-mails can have in establishing the underlying liability in the action and what steps employers can take to minimize this exposure.

Back to 'Sam Miller'

Sam Miller is undeniably a poor employee, whose work performance shortcomings have been well documented. The decision to terminate him, on its face, was completely justified. What the employer did not realize was the impact that the many e-mails among Sam's co-workers and supervisors discussing Sam and his shortcomings, would have on this litigation.

There was at least one proverbial “smoking gun” e-mail, which described Sam in racial terms. In addition, when drafting the performance evaluations and memorializing performance problems, both the Human Resources personnel and Sam's supervisors exchanged a number of e-mails conveying a sarcasm that made it appear, albeit wrongly so, as if the progressive discipline process was not being taken seriously, or that Sam's fate was predetermined long before the actual termination (and that the employer was trying to document him out of a job).

To further complicate matters, each co-worker, supervisor, and HR representative with potentially relevant e-mails had his or her own ideas as to how long an e-mail should be kept, and what types of e-mails should be kept at all. Therefore, each person's mailbox varied in the number of e-mails relating to Sam that had been retained, and a number of crucial e-mails (including parts of chains of e-mail messages on a topic) are missing. This severely impairs the employer's ability to show all of Sam's performance problems and the thought process involved in deciding to terminate him for those problems.

Finally, the employees who wrote and/or received the inappropriate e-mails had not told anyone at the company, including in-house counsel or the company's outside attorneys, about any of the these messages. Some remained quiet because they were under the false impression that, since those messages had been deleted from their respective mailboxes, they were gone forever. Others just never gave the messages another thought, since they were aware of the performance problems that plagued Sam throughout his tenure with the company, and it did not occur to them that the tone or content of the messages could detract from the legitimacy of the termination. Finally, others were simply never asked to preserve or turn over such e-mails to counsel.

Sam sues his former employer, alleging discrimination in the termination of his employment. Included among his discovery requests is a request that the former employer produce all e-mails relating to Sam Miller's employment during the term of his employment. An initial review of the situation shows that a poorly performing employee was terminated following a documented path of progressive discipline. However, upon review of the e-mails that currently exist, suddenly, what appeared to be an airtight case for the employer, with a documented path of progressive discipline against a poorly performing employee, has now become an expensive proposition fraught with potential liability, with possible settlement figures significantly higher than anticipated.

Preventive Measures

There are steps that every employer should take to minimize the potential scandals and liability that can result from workplace e-mail, while retaining its clear benefits, before they are put into a situation where they must engage in electronic discovery. Following these simple, yet important, steps can help protect employers against liability in connection with electronic communications.

• Develop, communicate, and enforce a policy prohibiting the use of workplace e-mail for non-business purposes.
• Stress to employees that workplace e-mail, even if password protected, is not private. If employees are aware that their workplace e-mail accounts are not private, employees may think twice before sending offensive messages. An added benefit to this policy is that it may reduce the sheer volume of workplace e-mails that may have to be searched, and reviewed for relevance and privilege, in discovery.
• Communicate with employees about the appropriate use of workplace e-mail.
• Make sure that employees understand the importance of treating e-mail as they would more formal types of business correspondence. Employees should be able to justify the content of every e-mail they send/receive at work. Employees must also be aware of the tone of their e-mail messages – for instance, sarcasm, which does not necessarily get conveyed in a written message, may be interpreted as not taking someone, or something, seriously. Remember, down the road the e-mail message may be seen by someone, such as an opposing counsel in a lawsuit, trying to read it in an unfavorable light. This is a particularly important point for managers, supervisors, and Human Resources personnel, as these employees are in positions to take an adverse action against an employee, such as discipline, denial of a promotion, demotion, and/or termination that could potentially lead to litigation.
• Develop, communicate, and enforce a comprehensive document retention policy that explicitly governs the retention (and scheduled backup/deletion) of e-mail and other electronic documents that complies with the laws and regulations that apply to your company's business.

The successful creation of an electronic document retention policy requires an analysis of the employer's computer systems (its capabilities and limitations), as well an understanding of the company's document retention goals that should come from discussions among the employer's IT department, human resources personnel, and the employer's counsel. Bearing in mind any document retention requirements in applicable federal or state law, the policy should clearly set out a schedule for electronic documents' regular backup, storage, and purging that sets out timing based upon a careful review of the type of document at issue. Once established, this policy should be communicated to employees (in a documented manner) and periodically audited to ensure compliance. Consistently following this policy will help to organize and greatly reduce the employer's long-term volume of workplace e-mail, particularly unnecessary or unimportant e-mails, that would have to be stored and potentially reviewed for production.

There is an important caveat that must be included in any document retention policy, whether governing electronic or paper documents. Once a litigation is reasonably anticipated or has already been initiated, employers are under a duty to preserve relevant documents, including those in electronic form. In consultation with their counsel, employers should establish, communicate and regularly monitor compliance with a carefully considered procedure to follow once the duty to preserve arises. If relevant documents are destroyed after the duty has arisen, an employer may face charges of spoliation and the possibility of sanctions.

Zubulake Redux

In late July, the court in Zubulake ordered spoliation sanctions against the employer when it was discovered that certain relevant e-mails had not been turned over to opposing counsel for nearly 2 years after receipt of the document requests to which the e-mails were responsive and yet others had not been retained at all. Thus, despite the company's efforts to comply with its electronic discovery obligations (both through its in-house counsel and its outside attorneys issuing a litigation hold on documents, including e-mails, once the duty to preserve had arisen), the judge ordered that an adverse inference be given to the jury about the deleted e-mails, particularly relating to those that could not be retrieved, in addition to requiring the employer to bear the costs of any additional or reopened depositions that the plaintiff thought necessary as a result of the failure to turn over responsive e-mails for such a prolonged period of time, the plaintiff's costs and attorneys fees of bringing the motion, and the costs associated with further restoration and production of certain e-mails from backup tapes.

The judge in Zubulake noted that communication failures between the company and its attorneys had led to the problems and highlighted the need for the active involvement of counsel in connection with electronic discovery. As the Zubulake decision makes clear, simply informing employees that e-mails must be retained once litigation is reasonably anticipated and/or has already begun is insufficient in order to avoid potential liability for unavailable or unproduced e-mails. Rather, the court stressed that counsel should be actively involved in the initial search for, preservation of and production of relevant e-mails, as well as in connection with any necessary subsequent supplements to the production of these e-mail communications.

Even if the duty to preserve has not yet arisen, it is helpful for an employer to be able to explain the absence of relevant documents as part of a written, consistently enforced document retention policy that complies with applicable law. Without these policies in place, an employer may find itself in the unfortunate position of having either no documentation to justify an action, or having only some, but not all, of the relevant e-mails requested in discovery. It is left to chance whether those electronic documents that exist accurately, and favorably, reflect the entirety of a situation, and an employer may be in the undesirable position of trying to rebut documentary evidence by favorably explaining gaps in the documents that may have helped to justify an action, or fully paint the picture of the events giving rise to the current litigation.

• Adopt, communicate, and enforce a policy of printing out “important” electronic documents in paper form. Those categories of electronic documents that are defined in the policy as “important”, such as those relating to the discipline or termination of an employee, should not only exist in electronic form.
• When evaluating the need to search and retrieve electronic discovery in an action, as well as who will pay for that effort, whether a costly electronic search for relevant documents is unreasonably duplicative or cumulative given the availability of these documents from other sources may be considered. There has been some suggestion that continued adherence to such a policy may obviate, or at least, minimize, the need to conduct a costly search and retrieval of these documents electronically if it can be shown that any “important” e-mails would have been printed out and therefore produced in paper form. At the very least, it strengthens an employer's argument that it should not alone bear the exorbitant costs of electronic discovery where it can produce most, if not all, of the requested material in printed form.

Conclusion

Recently, the U.S. Judicial Conference Committee on Rules of Practice and Procedures and the Advisory Committee on Civil Rules held a conference in New York to address the unique issues surrounding electronic discovery and discuss possible amendments to the Federal Rules of Civil Procedure. Last year, the American Bar Association Section of Litigation proposed draft electronic discovery standards, and the “Sedona Conference Working Group on Electronic Document Production,” comprised of attorney and non-attorney experts in the field who participated in a 2002 convention, released a set of “Best Practices, Recommendations & Principles for Addressing Electronic Document Production.” In addition, a growing number of courts have addressed these issues relating to workplace e-mail and its production in litigation.

There is clearly widespread recognition of the problems associated with electronic discovery, and the current system's inadequacies in dealing with those problems. Proposed solutions are beginning to take form, in the courts and otherwise. Unfortunately, electronic discovery issues will continue to plague companies, litigants, and courts or administrative agencies with enforcement responsibilities that must deal with this highly complex issue for the foreseeable future. However, while legislative and other reforms are contemplated, and solutions to these problems are debated, following the simple steps described above can help minimize the “costs” of workplace e-mail, while retaining its clear benefits.

Sam Miller was a poor employee. He regularly came to work late and left early. He frequently took egregiously long lunch breaks. He avoided taking on work, whenever possible, and the quality of the work he submitted left something to be desired. Countless instances of tardiness, laziness, and poor performance had been painstakingly documented by Sam's supervisors over time, and he had been informed of these chronic performance issues in his last four formal evaluations. The decision to terminate Sam's employment has been made. Sounds like this employer has done everything by the book, right? So why does his employer now face costly litigation and large potential financial exposure? In a word, e-mail.

Workplace E-mail

E-mail has become a way of life. Its advantages in the business world are widely known: It is an inexpensive, easily distributed medium, which can be accessed, even wirelessly, almost instantaneously anywhere in the world. In this fast-paced global economy, these features are highly desired. E-mail in the workplace is a double-edged sword, however, and the problems associated with workplace e-mail, particularly in connection with litigation-related discovery, have been recognized with increasing frequency by courts and litigants around the country.

Less known, but no less important, are the drawbacks and the potential for abuse of e-mail in the workplace, of which every employer should be aware. Just as most people do in their personal lives, employees use e-mail at work very informally. Many employees think nothing of typing an impulsive, colloquial message and hitting Send. E-mail's informality often leads employees to send messages without spell checking or grammar checking the communication, the way that they would in traditional business correspondence. More importantly for an employer, e-mail's informality leads people to write things (inappropriately for whatever reason) in this form of communication that they would never consider typing in more formal correspondence, such as a letter. Furthermore, e-mail's ready distribution can lead to the inadvertent forwarding of messages on a large scale.

Add to this the fact that e-mail, while it can be deleted from a user's mailbox, is often not irretrievable, and the potential liability for employers is exponentially increased because previously whispered communications between employees over the water cooler are now reduced to writing in an e-mail, which likely unbeknownst to the sender and recipient, may be retrievable long after it has been “deleted.” This can be very dangerous for an employer – particularly one which fosters an environment where e-mail is pervasive and the sheer volume of e-mail sent and received by employees on a daily basis is staggering.

Discovery of Electronic Documents

Anyone who has been embroiled in electronic discovery, whether in connection with an administrative agency, such as with the Equal Employment Opportunity Commission (EEOC), or at the litigation phase, in federal or state court, knows that the issue can be a costly one. Merely establishing your company's electronic capabilities with respect to current and past electronic documents and communications, before ever producing a single e-mail, can be a costly endeavor, let alone conducting the actual search for, preserving, and then reviewing, electronic documents in forms ranging from easily accessible formats to highly inaccessible ones requiring costly searches of backup tapes and restoration processes. And, as discussed below, the costs associated with the discovery of e-mails can become even higher where mistakes are made that lead either to the late production of responsive e-mail communications or, worse yet, to their irretrievable loss.

The skyrocketing costs and other problems associated with electronic discovery in the employment context have been the subject of a number of cases across the country in recent years. Courts have struggled with myriad issues relating to electronic discovery in the workplace, requiring an examination of the technology involved, the preservation and availability of electronic documents, the role of counsel in the process, and who should bear the often significant costs of retrieving, reconstructing, reviewing and producing them, in cases alleging employment discrimination, harassment, wrongful discharge, and retaliation.

Zubulake v. UBS Warburg

In one highly publicized action, Zubulake v. UBS Warburg , 217 F.R.D. 309 (S.D.N.Y. 2003), an employee sought production of e-mails from her former employer, which she claimed contained key evidence of her gender discrimination and related retaliation claims. It was determined that these e-mails only existed on backup tapes and in other “inaccessible” media that required costly procedures to restore, and the cost of retrieving and restoring the e-mails was estimated at approximately $175,000, exclusive of attorney time reviewing the messages for privilege and relevance.

Zubulake was a single-plaintiff case, albeit involving a highly compensated former employee. The rise in class actions, including those in the employment context, in wage and hour cases brought under the Fair Labor Standards Act (FLSA), and discrimination cases, such as those brought under Title VII of the Civil Rights Act of 1964 (Title VII), can exponentially increase these figures. Some speculate that the potentially exorbitant costs associated with electronic discovery, particularly in the class action context, place unfair pressure on defendant employers, from a strictly economic perspective, to settle even meritless claims.

The growing involvement of e-mail and other forms of electronic discovery in both administrative agency and court proceedings, and the highly technical and costly aspects of compliance with electronic discovery requests, have led to a growing awareness among employers of the “costs” of producing electronic documents in discovery. This trend has also led to a number of companies that market “electronic discovery” products and services to businesses, some specifically to employers, to help them muddle through the technology of electronic discovery to meet their disclosure obligations.

What should not be lost in discussions surrounding the “costs” of electronic discovery is the potential “cost” of the content of the e-mails at the heart of these electronic discovery disputes. Regardless of how the “costs” of the production of electronic documents in discovery are apportioned by the courts, the equally, if not more important issue in cases surfacing around the country, is just what impact the e-mails can have in establishing the underlying liability in the action and what steps employers can take to minimize this exposure.

Back to 'Sam Miller'

Sam Miller is undeniably a poor employee, whose work performance shortcomings have been well documented. The decision to terminate him, on its face, was completely justified. What the employer did not realize was the impact that the many e-mails among Sam's co-workers and supervisors discussing Sam and his shortcomings, would have on this litigation.

There was at least one proverbial “smoking gun” e-mail, which described Sam in racial terms. In addition, when drafting the performance evaluations and memorializing performance problems, both the Human Resources personnel and Sam's supervisors exchanged a number of e-mails conveying a sarcasm that made it appear, albeit wrongly so, as if the progressive discipline process was not being taken seriously, or that Sam's fate was predetermined long before the actual termination (and that the employer was trying to document him out of a job).

To further complicate matters, each co-worker, supervisor, and HR representative with potentially relevant e-mails had his or her own ideas as to how long an e-mail should be kept, and what types of e-mails should be kept at all. Therefore, each person's mailbox varied in the number of e-mails relating to Sam that had been retained, and a number of crucial e-mails (including parts of chains of e-mail messages on a topic) are missing. This severely impairs the employer's ability to show all of Sam's performance problems and the thought process involved in deciding to terminate him for those problems.

Finally, the employees who wrote and/or received the inappropriate e-mails had not told anyone at the company, including in-house counsel or the company's outside attorneys, about any of the these messages. Some remained quiet because they were under the false impression that, since those messages had been deleted from their respective mailboxes, they were gone forever. Others just never gave the messages another thought, since they were aware of the performance problems that plagued Sam throughout his tenure with the company, and it did not occur to them that the tone or content of the messages could detract from the legitimacy of the termination. Finally, others were simply never asked to preserve or turn over such e-mails to counsel.

Sam sues his former employer, alleging discrimination in the termination of his employment. Included among his discovery requests is a request that the former employer produce all e-mails relating to Sam Miller's employment during the term of his employment. An initial review of the situation shows that a poorly performing employee was terminated following a documented path of progressive discipline. However, upon review of the e-mails that currently exist, suddenly, what appeared to be an airtight case for the employer, with a documented path of progressive discipline against a poorly performing employee, has now become an expensive proposition fraught with potential liability, with possible settlement figures significantly higher than anticipated.

Preventive Measures

There are steps that every employer should take to minimize the potential scandals and liability that can result from workplace e-mail, while retaining its clear benefits, before they are put into a situation where they must engage in electronic discovery. Following these simple, yet important, steps can help protect employers against liability in connection with electronic communications.

• Develop, communicate, and enforce a policy prohibiting the use of workplace e-mail for non-business purposes.
• Stress to employees that workplace e-mail, even if password protected, is not private. If employees are aware that their workplace e-mail accounts are not private, employees may think twice before sending offensive messages. An added benefit to this policy is that it may reduce the sheer volume of workplace e-mails that may have to be searched, and reviewed for relevance and privilege, in discovery.
• Communicate with employees about the appropriate use of workplace e-mail.
• Make sure that employees understand the importance of treating e-mail as they would more formal types of business correspondence. Employees should be able to justify the content of every e-mail they send/receive at work. Employees must also be aware of the tone of their e-mail messages – for instance, sarcasm, which does not necessarily get conveyed in a written message, may be interpreted as not taking someone, or something, seriously. Remember, down the road the e-mail message may be seen by someone, such as an opposing counsel in a lawsuit, trying to read it in an unfavorable light. This is a particularly important point for managers, supervisors, and Human Resources personnel, as these employees are in positions to take an adverse action against an employee, such as discipline, denial of a promotion, demotion, and/or termination that could potentially lead to litigation.
• Develop, communicate, and enforce a comprehensive document retention policy that explicitly governs the retention (and scheduled backup/deletion) of e-mail and other electronic documents that complies with the laws and regulations that apply to your company's business.

The successful creation of an electronic document retention policy requires an analysis of the employer's computer systems (its capabilities and limitations), as well an understanding of the company's document retention goals that should come from discussions among the employer's IT department, human resources personnel, and the employer's counsel. Bearing in mind any document retention requirements in applicable federal or state law, the policy should clearly set out a schedule for electronic documents' regular backup, storage, and purging that sets out timing based upon a careful review of the type of document at issue. Once established, this policy should be communicated to employees (in a documented manner) and periodically audited to ensure compliance. Consistently following this policy will help to organize and greatly reduce the employer's long-term volume of workplace e-mail, particularly unnecessary or unimportant e-mails, that would have to be stored and potentially reviewed for production.

There is an important caveat that must be included in any document retention policy, whether governing electronic or paper documents. Once a litigation is reasonably anticipated or has already been initiated, employers are under a duty to preserve relevant documents, including those in electronic form. In consultation with their counsel, employers should establish, communicate and regularly monitor compliance with a carefully considered procedure to follow once the duty to preserve arises. If relevant documents are destroyed after the duty has arisen, an employer may face charges of spoliation and the possibility of sanctions.

Zubulake Redux

In late July, the court in Zubulake ordered spoliation sanctions against the employer when it was discovered that certain relevant e-mails had not been turned over to opposing counsel for nearly 2 years after receipt of the document requests to which the e-mails were responsive and yet others had not been retained at all. Thus, despite the company's efforts to comply with its electronic discovery obligations (both through its in-house counsel and its outside attorneys issuing a litigation hold on documents, including e-mails, once the duty to preserve had arisen), the judge ordered that an adverse inference be given to the jury about the deleted e-mails, particularly relating to those that could not be retrieved, in addition to requiring the employer to bear the costs of any additional or reopened depositions that the plaintiff thought necessary as a result of the failure to turn over responsive e-mails for such a prolonged period of time, the plaintiff's costs and attorneys fees of bringing the motion, and the costs associated with further restoration and production of certain e-mails from backup tapes.

The judge in Zubulake noted that communication failures between the company and its attorneys had led to the problems and highlighted the need for the active involvement of counsel in connection with electronic discovery. As the Zubulake decision makes clear, simply informing employees that e-mails must be retained once litigation is reasonably anticipated and/or has already begun is insufficient in order to avoid potential liability for unavailable or unproduced e-mails. Rather, the court stressed that counsel should be actively involved in the initial search for, preservation of and production of relevant e-mails, as well as in connection with any necessary subsequent supplements to the production of these e-mail communications.

Even if the duty to preserve has not yet arisen, it is helpful for an employer to be able to explain the absence of relevant documents as part of a written, consistently enforced document retention policy that complies with applicable law. Without these policies in place, an employer may find itself in the unfortunate position of having either no documentation to justify an action, or having only some, but not all, of the relevant e-mails requested in discovery. It is left to chance whether those electronic documents that exist accurately, and favorably, reflect the entirety of a situation, and an employer may be in the undesirable position of trying to rebut documentary evidence by favorably explaining gaps in the documents that may have helped to justify an action, or fully paint the picture of the events giving rise to the current litigation.

• Adopt, communicate, and enforce a policy of printing out “important” electronic documents in paper form. Those categories of electronic documents that are defined in the policy as “important”, such as those relating to the discipline or termination of an employee, should not only exist in electronic form.
• When evaluating the need to search and retrieve electronic discovery in an action, as well as who will pay for that effort, whether a costly electronic search for relevant documents is unreasonably duplicative or cumulative given the availability of these documents from other sources may be considered. There has been some suggestion that continued adherence to such a policy may obviate, or at least, minimize, the need to conduct a costly search and retrieval of these documents electronically if it can be shown that any “important” e-mails would have been printed out and therefore produced in paper form. At the very least, it strengthens an employer's argument that it should not alone bear the exorbitant costs of electronic discovery where it can produce most, if not all, of the requested material in printed form.

Conclusion

Recently, the U.S. Judicial Conference Committee on Rules of Practice and Procedures and the Advisory Committee on Civil Rules held a conference in New York to address the unique issues surrounding electronic discovery and discuss possible amendments to the Federal Rules of Civil Procedure. Last year, the American Bar Association Section of Litigation proposed draft electronic discovery standards, and the “Sedona Conference Working Group on Electronic Document Production,” comprised of attorney and non-attorney experts in the field who participated in a 2002 convention, released a set of “Best Practices, Recommendations & Principles for Addressing Electronic Document Production.” In addition, a growing number of courts have addressed these issues relating to workplace e-mail and its production in litigation.

There is clearly widespread recognition of the problems associated with electronic discovery, and the current system's inadequacies in dealing with those problems. Proposed solutions are beginning to take form, in the courts and otherwise. Unfortunately, electronic discovery issues will continue to plague companies, litigants, and courts or administrative agencies with enforcement responsibilities that must deal with this highly complex issue for the foreseeable future. However, while legislative and other reforms are contemplated, and solutions to these problems are debated, following the simple steps described above can help minimize the “costs” of workplace e-mail, while retaining its clear benefits.