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E-mails: 'Smoking Guns' in Employment Litigation

By Ruth D. Raisfeld

E-mail traffic by employees in the workplace has proven to be key evidence in recent criminal and civil investigations of public companies like Martha Stewart Omnimedia, Merrill Lynch, Citibank and other Wall Street firms. For example, Citibank analyst Jack Grubman's e-mail in which he mixed messages about AT&T stock analysis with concerns about his kids' admission to a private nursery school of which Citibank Chair Sandy Weill was a trustee, surely made all corporate lawyers wince.

However, the significance of e-mail traffic is not limited to investigations of securities law violations. E-mails are also a fertile source of evidence of employee wrongdoing in situations involving sexual harassment, discrimination, and other inappropriate activity at work. Examples abound of employees instant messaging each other their opinions about bosses and co-workers, their sexual desires, or about just plain boredom. The New York Law Journal recently reported that a Harvard Law student at a $2500-a-week summer job at Skadden Arps learned a lesson the hard way when he inadvertently sent an e-mail intended for a personal friend to the law firm's entire corporate department. As a result, everyone in the entire legal community became privy to his irreverent and profane description of his 2-hour sushi lunch and the absence of significant legal work to do.

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