Legal Content Emails – Be Careful
Kegler Brown E-mployment Alert November 18, 2013
Just because the email you write mentions your company lawyer, it isn’t necessarily privileged. Just because you are seeking legal guidance, it doesn’t mean your email string is privileged. And just because HR sends you advice on how to handle a legal issue, it does not mean it is privileged. All of these communications are probably discoverable in litigation, so think about that when you are sending them.
Internal emails hold a treasure trove of information, both good and bad. Sometimes, managers assume that if they are getting advice from HR it is privileged or exempt from later disclosure. That is not the case. We recently saw a string of emails from a manager to the HR office, complaining that an employee’s intermittent FMLA absence was becoming a problem, and asking HR to help them fashion a better-sounding, but sham, rationale to get rid of the employee. We’ve also seen emails from HR to managers and supervisors that suggest changes to performance evaluations or other documents to delete or sanitize statements showing unlawful reasons for employment decisions. In each case, these emails make the defense of employee claims difficult, if not impossible.
The best advice is to assume that any communication about an employee will eventually be made public and compose the words accordingly.