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.
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 retrieve electronic data in civil litigation discovery. (1)
In addition to collecting and analyzing email, the production can generate extensive spin-off discovery in an effort to leave no stone unturned. An internal information technology staff can be tied up for days or even weeks, according to some treatises. If the IT staff is insufficient, the corporation must outsource the collection and analysis. (2) The e-mail may pull otherwise unknowledgeable witnesses into the litigation. They may add little, if anything, to the merits of the claims or defenses, yet they are corralled, interrogated and distracted from otherwise productive duties. Instead of uncovering truly relevant facts, e-mail productions prolong and sidetrack the search for troth, and sometimes it may even develop untruth. Some written communications found in e-mail just aren't accurate.
However, apart from these litigation-related costs, which many people argue are simply a cost of doing business, one must ask whether the true social intent, benefit and purpose of e-mail within companies, are advanced or suppressed by its use in civil litigation.
BASIS OF LEGAL PRIVILEGE
Concepts of legal privilege are grounded in private, confidential relationships. Communications made in confidence in these relationship are not protected from disclosure merely because of the confidentiality of the communication, but because of a strong public policy or a public concern that underlies the communication. (3) Privileges not to testify create narrow exceptions to the principle that the troth should be ascertained by all rational means. …