Using e-mail as evidence in disciplinary actions

Using e-mail as evidence in disciplinary actions
Strauss v Microsoft, USDC SDNY, Lexis 7433

Employers and employees are discovering that with the increased use of electronic mail [e-mail], records thought not to exist may be hidden in computer files. Accordingly, employers are now reviewing computer backup tapes to find evidence of employee misconduct for use in disciplinary actions while employees are using the same sources to discover incriminating evidence of employer wrongdoing such as unlawful discrimination or sexual harassment.

The Strauss case illustrates this trend. Strauss, an employee of Microsoft, alleging she was not promoted because of gender discrimination. Microsoft’s efforts to have her charges summarily dismissed failed when Strauss introduced “explicit e-mail messages from her supervisor” that she found on backup tapes during the discovery phase of litigation.

Courts are usually disposed to granting motions that “appear reasonably calculated to lead to the discovery of admissible evidence.” The fact that the material sought is in electronic rather than a traditional paper form has not been a barrier to approvals.

In another case, Davidian v O’Mara, [USDC TN, 2-97-0020] a newspaper asked a federal district court to allow it to obtain information stored on City of Cooksville [Tennessee] employee’s computer hard drives under the state’s Freedom of Information Law. The newspaper wanted to find out the “web sites” that may have accessed through the City’s computers by its employees by reviewing the “cookie files” stored on the drives.

Originally the city said the newspaper had to pay for the information -- over $300 -- but later decided to refuse to produce the information, claiming the computer files were not public records. However, “cookie files” are like “telephone logs” according to some attorneys involved in First Amendment litigation and therefore must be produced under “Freedom of Information.”

What about employee claims that “personal e-mail” is private and not subject to scrutiny by the employer. As this is still an issue unsettled by the courts, many employers are advising employees that:

1. Workers should not have any “expectation of privacy” with respect to any information, official or personal, prepared using the organization’s computer equipment; and

2. The employer may periodically monitor or review computer files prepared using company equipment.

In some case, unions have attempted to include “employee privacy” provisions in collective bargaining agreements.