Discovery Unplugged: Should Internal E-Mails Be Privileged Confidential Communications? the Concept of Appropriate Discovery Should Keep Pace with Modern Communications Technology and Protect Intra-Company E-Mail

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MOST PEOPLE are more comfortable with old problems than new solutions. That notwithstanding, this article argues for the creation of a new communications privilege based on privacy and business policy: An organization's internal e-mail communications related to advancing the goals of the organization should not be discoverable in litigation, provided the organization takes the steps necessary to preserve the privacy of these communications.

DISCOVERING E-MAIL

Generally speaking, corporations, lawyers who represent corporations, lawyers who assert claims against corporations and judges who manage discovery issues related to litigation involving corporations have not questioned the propriety of allowing discovery of a company's e-mail database. It seems natural and logical for the litigation professionals to accept the discoverability of a preserved record of an individual's thoughts, or a group of individuals' exchanged thoughts, within a corporation and related to the advancement of corporate goals.

A search of the Lexis national case law database for federal and state decisions from January 1990 to the summer of 2002 uncovered no decision in which a court considered creating a privilege for internal corporate e-mail. A search of the professional journal article database covering 900 leading legal and business journals was similarly unavailing. No effort was evident in pending or abandoned federal legislation.

The evolution of computer technology in the corporate world and in society has contributed to the mindset that e-mail should be discoverable. The decisions sustaining the discoverability of e-mail, however, occurred before the practical effects of allowing that discovery were foreseen, or possibly even appreciated. The time may be ripe to rethink the propriety of invading these communications.

Responding to a discovery request for a corporation's internal e-mail sounds simple until the task begins. A corporation served with a request to produce these electronic communications will soon learn that compliance can be time consuming and very expensive. For instance, President Clinton's chief of staff, John Podesta, in October 2000 estimated that the cost of the effort to reconstruct, retrieve and analyze lost e-mail related to the Monica Lewinsky scandal would exceed $11 million. The court ordered the defendant to pay the not "undue" estimated cost in excess of $1 million to …