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Joulé Inc. Joulé Inc.

Updated Email Policy

And New Litigation Hold Notice

By Janette S. Levey, Esq.

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AgendaAgenda New Email Policy

– Overview of Policy - Acceptable vs. Unacceptable email use– Common Email Myths– Email Incidents Making Media Headlines– Everyday Examples– How is Inappropriate Use of Company Email Caught?– Retention, Deletion, and Archiving of Emails

Litigation Hold Notice– Overview– Federal Court Cases– Creating a Litigation Hold Folder – Moving Documents to the Litigation Hold Folder

Questions and Concerns

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What Does The New Email Policy do?

What Does The New Email Policy do?

Outlines guidelines for acceptable and unacceptable use of the company email system.

Provides e-mail retention and deletion guidance.

Explains our liability for an employee’s inappropriate use of company e-mail.

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Addressing Common Email Myths

Addressing Common Email Myths

Myth #1: Emails/electronic documents go only to the intended recipients.

Fact: Emails/electronic documents may be viewed by far more recipients than intended because of the forwarding option.

Myth #2: Email comments are no big deal and are not that powerful.

Fact: Even when unintended, comments in emails can be perceived as threats, harassment or discrimination.

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Addressing Common Email Myths

Addressing Common Email Myths

Myth #3: Personal emails sent from work are private.

Fact: The law recognizes all emails sent via company systems as official company communications/property subject to monitoring by management, therefore employees should have NO reasonable expectation of privacy when using the computer, Internet or email system.

Myth #4: Emails can be permanently deleted. Fact: Emails can often be recovered by using

utilities, checking employees’ workstations or engaging an outside vendor.

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Email Incidents Making Media Headlines

Email Incidents Making Media Headlines

In 2001, Royal Sun fired 10 and suspended 77 employees for using the company ‘s email system to send pornographic cartoon of Bart Simpson

In March, 2005, Harry Stonecipher, Boeing CEO - fired for sending a sexually graphic letter with an email attachment indicating he was having an affair with a co-worker.

October 2007, Roger Coryell, Eastern Michigan University Baseball Coach and 2007 Mid-American Coach of the Year – was suspended for uploading lewd pictures of himself and sending them via university e-mail system to a player’s mother while also hitting the “Reply All” button!

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Email Incidents Making Media Headlines

Email Incidents Making Media Headlines

2 Employees were ordered to pay Varian Medical Systems of California $775,000 - for sending thousands of emails accusing managers of having sexual affairs, lying and engaging in other offensive behavior.

Key Fact: Once you send an email you cannot control who will see it. Unlike paper documents, emails are much more easily circulated to a wider audience and less easily destroyed.

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Everyday Examples of Inappropriate Use of Company Computer Systems

Everyday Examples of Inappropriate Use of Company Computer Systems

To further clarify the seriousness of the problem the following examples have been provided, some of which occurred within Joulé during the last 5-6 years.

Gambling on-line during work hours – employee terminated.

Distribution of vulgar and/or derogatory e-mails about co-workers and managers – employees terminated.

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Everyday Examples of Inappropriate Use of Company Computer

Systems

Everyday Examples of Inappropriate Use of Company Computer

Systems

Distribution of lewd cartoons – employees received written warnings.

Downloading lewd self photos from personal website and using as a screensaver at work – employee terminated.

Accidental discovery by manager of defaming emails of a subordinate while working on an annual review – employment relationship ended.

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How are People caught?How are People caught?

An employee complains about an employee relations issue and an investigation is started.

An investigation of one employee starts and turns up information on another employee engaging in inappropriate use of the company computer system.

An employee unintentionally hits the “Reply All” instead of the “Reply” button.

Employee’s share laptops or desktop computers and a discovery of inappropriate usage is reported.

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How are People Caught? How are People Caught? The wrong recipient name(s) is selected and

the email goes to the wrong person(s) Employer conducts a random audit of the use

of its computer / email / Internet system. The company is involved in a lawsuit and

offending emails or logs of visits to inappropriate websites or other documents are found and have to be provided to the other side during the discovery phase of litigation.

Forwarding an entire email thread without truncating.

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What types of use of the Joulé Email System are

prohibited?

What types of use of the Joulé Email System are

prohibited?

Any activity outlined in the Staff Employee Manual to do with Use of Company Computer Systems (with the understanding that reviewing Policies 311 and 312 are not all encompassing.)

Emails containing expletives (curse words), slang or other coarse language.

Emails that violate the Company’s Harassment, Diversity or Standards of Conduct Policies.

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What types of use of the Joulé Email System are

prohibited?

What types of use of the Joulé Email System are

prohibited?

Emails that are of a derogatory nature. Rule of Thumb: ask yourself if you

would be comfortable seeing your email blown up on a billboard, published in a newspaper or read by at least 12 jurors?

If not, rethink your choice of words and edit your email and most of all, do not send it as written.

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Preservation and Deletion of Email

Preservation and Deletion of Email

The new email policy is also intended to address changes in the law that may require preservation of electronic documents in the event of a lawsuit.

We have a duty to retain and produce documents relevant to a lawsuit if we either:– Are involved in litigation.– Have reason to believe we are likely to be

involved in litigation.

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What Emails Should I Delete and When?

What Emails Should I Delete and When?

Emails 4+ weeks old - not currently or actively related to a matter the employee is working on.

E-mails that are not business related. Emails not referred to within the last six months

or more. Emails not subjected to a litigation hold

notification and deemed irrelevant to:– Pending litigation– Anticipated litigation– A current, ongoing or recent investigation

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Why should I be concerned about deleting emails?

Why should I be concerned about deleting emails?

Joulé has been and will be involved in legal cases. The following is provided as an example of what might occur: – Joulé is served a summons and complaint in a non-

anticipated employment discrimination case on January 1, 2008.

– Joulé’s duty to retain documents begins on January 1, 2008. – If the employee’s supervisor and co-workers deleted

documents prior to January 1, 2008, there is no problem. Answer: Deletions of any related documents in the system

(whether generated from a home, laptop or company computer) after January 1, 2008 would violate the email policy and severely limit Joulé’s ability to produce documents.

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Why Should I be concerned about deleting emails?

Why Should I be concerned about deleting emails?

Note: all e-mails exchanged between any employee related to the employee(s) named in the summons are subject to full discovery regardless of content (personal or professional) and may not be deleted so extreme care should be taken with regard to all e-mail content.

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How Do I Know When to Delete an Email?

How Do I Know When to Delete an Email?

Evaluate the following about Emails 4 or more weeks old:– Have you received a litigation hold or investigation

notice where the email or document may be relevant? If YES, RETAIN. If NO, DELETE.

– Have you used or referred to it within the last 6 months? – Is it related in any way to a currently active contract or

client or any other matter you are currently working on or expect to be working on in the next month or two?

If you answer NO to both questions DELETE the email(s) or document(s).

If the answer is YES to both questions RETAIN the email(s) or document(s).

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How and Where Do I Retain the Emails and/or

Documents?

How and Where Do I Retain the Emails and/or

Documents?

An Archiving/Litigation Hold File Tutorial Handout is available for specific step by step information on Joulé’s recommended archiving methods and the related procedures for creating a Litigation Hold File. This tutorial also covers how to move documents in to the file and how to recover emails inadvertently deleted.

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Litigation Hold Notice: Overview

Litigation Hold Notice: Overview

What is it?– A litigation Hold Notice is a notice that directs an

employee to look for and preserve information that may be connected to an actual or anticipated lawsuit.

When and why would I receive one?– You might receive a Litigation Hold Notice if Joulé

becomes involved or anticipates becoming involved in a lawsuit, or Joulé believes that you are someone who may have relevant information about the person or subject matter that gives rise to a lawsuit.

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Litigation Hold Notice: Overview

Litigation Hold Notice: Overview

What do I do if / when I receive one?– Create and move relevant documents into a

Litigation Hold File (refer to handout)

If Deleted emails are recoverable why worry about preserving them?– Joulé’s credibility is hampered if it appears

documents were deleted intentionally to manipulate the facts or hide information.

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Litigation Hold Notice: Federal Court ExamplesLitigation Hold Notice:

Federal Court Examples

Target v. EEOC

Employment discrimination case, where Court found potential liability for not applying its record retention policy. Target agreed to pay total of $510,000 in legal fees to plaintiffs, revise document retention policies and provide employment discrimination and record-keeping training to supervisors.

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Litigation Hold Notice: Federal Court ExamplesLitigation Hold Notice:

Federal Court Examples

Qualcomm vs. Broadcom (2007)

Patent Infringement case between 2 cell phone chipmaker rivals. Qualcomm produced 200,000 pages of relevant and incriminating emails and electronic documents four months after the jury trial. On January 7, 2008, the court ordered Qualcomm to pay all of Broadcom’s legal fees and costs ($8,568, 633).

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Litigation Hold Notice: Federal Court ExamplesLitigation Hold Notice:

Federal Court Examples

In general, the likely penalties for failure to preserve evidence (relevant documents and e-mails) are:– Preclusion of testimony or other evidence – Substantial fines– Adverse inference – Dismissal (for plaintiff) or default judgment (in

favor of defendant)

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Questions and ConcernsQuestions and Concerns