Recently the NFL’s Miami Dolphins made headlines, not because of wins on the field, but because of alleged harassment and bullying both in the locker room and through electronic means such as emails, voice mail, and text messages. Briefly, the known facts are as follows:
A Miami Dolphins player, Jonathan Martin, left the team, alleging harassment. The harassment is said to have been partially electronic. More specifically,
- Offensive Line player Jonathan Martin left the team at the end of October, later alleging that he departed due to harassment and bullying by his teammates.
- Another Offensive Line player sent harassing and threatening electronic messages to Martin.
- The other player, Richie Incognito, claims that his actions were not bullying.
- Both the NFL and the player’s union are running investigations into the incident.
- Jonathan Martin has hired an attorney.
No company, even the NFL can monitor every communication between its employees, but it is exceedingly important to keep email records of conversations that happen over company email. Ultimately, an employer needs to have records of emails in case there is a challenge related to email harassment, for two reasons:
Lowering costs and federal requirements.
- First, the costs will be much lower in the long run. Electronic recovery of emails requested by opposing counsel in the legal discovery process can become quite expensive. If you have an email archiving system, it is cheaper, quicker, and more efficient.
- Federal guidelines require the preservation of workplace emails, and failure to follow these guidelines could result in hefty fines.
Federal guidelines for the retention of emails were put into place in 2006. Important information to know about these rules includes:
Email retention is governed by Rule 26 and Rule 34 of the Federal Rules of Civil Procedure (FRCP).
- Email retention is required by the FRCP, which are rules that govern civil cases (which, generally, are most federal cases that are not appeals, criminal cases, or bankruptcy).
- The particular rules that governs electronic retention is Rule 26, which is about discovery – what information each party is required to provide to its opponent- and rule 34, which is specifically about electronically stored information.
- A party need not provide discovery if it is an undue burden or cost to obtain, but the party must demonstrate that this is the case (Rule 26(b)(2)(B)).
- Even then the court can still order that discovery be produced if the requesting party shows good cause (Rule 26(b)(2)(C)).
- Electronic requests may include “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations…and any designated tangible things” (Rule 34(a)(1)).
- Non-parties can also be required to produce documents (Rule 34(c)).
Some states also have electronic discovery rules. In the event of a claim of harassment against an employer, litigation will generally be brought in state court if there are applicable state laws, or in federal court if there are not.
The federal courts want employers to save emails for many types of litigation, not just those related to employee issues, but being able to follow up on harassment claims by employees and the ability to produce those emails in the event of litigation should top an employer’s list.
If litigation related to the Miami Dolphins eventually makes it into court, the Dolphins may have to produce emails sent between Martin and Incognito and will need to do so promptly and completely or face sanction from the courts. Doing so will be much easier if they have an email archiving solution.
If you run a business and are not yet archiving your email, contact us to learn more about rates and how we work.