The everyday emails, texts and workplace chats your employees send may surface as evidence if your business becomes involved in a commercial lawsuit. Once litigation becomes reasonably foreseeable, however, you must suspend those deletions and preserve relevant evidence.
Informal messages as evidence
Discovery, the pretrial exchange of information, allows the opposing party to request relevant emails, texts and chat logs. Courts in Pennsylvania, New Jersey and the District of Columbia require your business to produce the responsive records it possesses or controls. That obligation remains subject to privileges, valid objections and limits on scope and burden.
Employees often write casual messages quickly and without review, so their wording may reveal facts central to the dispute. An offhand comment may establish when your business received notice of a problem or contradict a position you later take in the litigation.
Context and timing as factors in interpretation
A reply, joke or emoji reaction may look like an admission when a judge or jury sees it outside the surrounding conversation. Earlier and later messages in the same thread help demonstrate whether the writer was being sarcastic or expressing doubt.
An employee’s concern about a deal before you sign it may suggest that you knew of the risk, while the same concern after a dispute begins may read as hindsight.A court may admit a manager’s comment against your business if the manager made it during the manager’s employment and it concerns a matter within the manager’s job duties. That rule applies even when the manager offered the remark as a passing opinion.
Communication and retention policies as risk management
If you designate approved communication channels for your employees, you can locate records quickly when a legal conflict arises. Messages scattered across personal phones and outside apps are harder to collect.
With a consistent retention schedule, you delete older material on a routine basis unless a law or regulation requires you to hold it longer. Once litigation becomes reasonably foreseeable, however, you must suspend those deletions and preserve relevant evidence.