Every day, as a regular part of doing business, employers need to discuss applicants or current and former employees. Communications have changed and evolved over the years and these communications can be in the form of any of the following:

• In-person verbal communication;
• over the telephone;
• mail;
• fax;
• email;
• text messaging; and
• twitter.

Most written communication between supervisors and between executives will likely be by email, text or some other electronic means. Often, instead of walking to the office next door or calling the person two offices down, employees send an email or text message to the person instead. For good or bad, electronic communication is a primary means of communication between employees in today’s business world. This has become so commonplace, that, many times, employees forget that these communications can be viewed by third parties.

People are lulled into feeling that their emails and text messages will never be viewed by anyone other than the recipient (and they may unfortunately write something that they would not want viewed by anyone other than the recipient). I often find this in litigation, when it is apparent that the person sending the email or text message didn’t think that anyone other than the recipient would see the communication. However, often times, this is not the case, much to the company’s misfortune.

Illinois, like most states, understands how people communicate now and therefore has specific rules on discovery of electronic communications in litigation.

Illinois Supreme Court Rule 214(a) specifically states:

“Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information as defined under Rule 201(b)(4)…”

Illinois Supreme Court Rule 201(b)(4) specifically states:

“Electronically Stored Information. (“ESI”) shall include any writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations in any medium from which electronically stored information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable from.”

What does all of this mean? If you or your employees are communicating electronically, these communications could be “discovered” if litigation takes place and opposing counsel requests the electronic communication. The problem that we see is that people are much more informal in their electronic communications and say things that they would never say if they thought a third person would see the email or text someday. This can be extremely detrimental for a company that, years later, finds itself in litigation and having to disclose these sensitive electronically stored communications.

What can a company do to help protect itself? Here are some strategies:

1. Have a policy regarding electronic communications and follow the policy. The policy should require all electronic communications to be professional and business related;
2. Conduct training regarding the policy and the do’s and don’ts in what is allowed and not allowed in electronic communications; and
3. Take prompt action if you discover violations of the policy.

The rule of thumb for all employees is they should not put anything in writing that they would not want an outside third party to see. Following this rule will help you in defending yourself and your company if you ever find yourself in litigation.

If you have any questions or need help with a new or revised policy, please contact Attorney Joe Laverty at (563) 333-9102 or (630) 377-1554 or by email at jolaverty@wesselssherman.com