Posted 07-13-2011

Email is wonderful. It’s fast and effective, low cost and easy to use, and all of us have come to depend on it. Nearly 2 billion users sent more than 107 trillion emails in 2010. Email feels like a phone call-quick and casual-without the hassles of telephone tag. But, unlike a telephone call, email creates a document, which can be reproduced exactly and may have to be explained in the harsh light of a hostile courtroom. Email can be a gold mine-or a land mine!

Virtually every piece of civil litigation now involves information stored in electronic form. In employment litigation today, email messages often form the evidentiary core of the case. But there are many other kinds of electronic information that may be relevant. For example, in a pregnancy discrimination case that I am now defending, there is no email evidence, but there are entries on the company’s electronic timekeeping system, computer-generated payroll records, Craigslist job advertisements, and the ex-employee’s Facebook postings.

One recent case in which electronic evidence was essential is Gaskell v. University of Kentucky, 2010 U.S. Dist. LEXIS 124572 (E.D. Ky. 2010). Martin Gaskell was the leading contender for the position of director of the university’s new astronomical observatory. Then, one of the search committee members did an internet search on Dr. Gaskell, and found on his personal website an article he had written: “Modern Astronomy, the Bible and Creation”. The committee became concerned that he was a creationist.

When another candidate with less experience and education got the job, Dr. Gaskell sued, claiming religious discrimination. Some of the search committee emails (admitted into evidence) said:

It has become clear to me that there is virtually no way Gaskell will be offered the job despite his qualifications that stand far above those of any other applicant. Other reasons will be given for this choice when we meet Tuesday. In the end, however, the real reason why we will not offer him the job is because of his religious beliefs in matters that are unrelated to astronomy or to any of the duties specified for this position.


I know that the university chose an applicant with almost no relevant experience over one with immense experience in virtually every aspect of the observatory director’s duties. And I know that this choice was made (to a significant extent) on grounds that have nothing to do with the job as advertised nor with the job as envisioned by our department.

The university and Dr. Gaskell, who had since taken another job, settled the case in early 2011 for $125,000.

Why didn’t the university just get rid of the smoking-gun emails? That would have created even more problems! Employers cannot simply dump problematic emails if they think a lawsuit may be filed; under the law, companies must put a “litigation hold” on electronic evidence as soon as they “reasonably anticipate” litigation.

At this year’s national Society for Human Resource Management conference, a speaker asked the packed room how many train employees on the proper use of email, and very few raised their hands. Yet more than half responded that they’ve disciplined employees for improper use of email.

What this means to you:

You can’t afford not to train your employees on the proper use of email and other means of electronic communication!

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.