How Deleting an Incriminating E-mail Can Backfire

Don Tennant
Slide Show

Top Five Rules for E-mail Etiquette

Follow these simple rules to look more professional in the world of e-business communication.

Suppose you're a manager at your company and another manager sends you an e-mail that contains a disturbing racial slur directed against one of his or her subordinates. Would you be more inclined to delete the e-mail so you wouldn't have the slur sitting in your inbox, or preserve it as evidence that there's a problem with racism in your company?

 

If your natural inclination is to get rid of it, understand that you are not only ignoring a problem that needs to be fixed, but you might be perceived as engaging in a cover-up that could have serious legal consequences. That was one of my takeaways from a conversation I had on Monday with Patrick Boyd, a labor and employment attorney in New York.

 

Boyd's law firm has filed a suit against Hanesbrands Inc.-the underwear company-on behalf of Yunusa Kenchi, a former Hanesbrands employee who is African-American and who was terminated from the company. Here's an excerpt from a news release about the case that was put out by Boyd's firm:

Mr. Kenchi states that just days before his termination, he intercepted an e-mail from his direct supervisor discussing his impending discharge, which stated, 'We should go forward with getting this [N-word] out of here.' Mr. Kenchi was fired and offered only a modest severance package, which he refused. The supervisor was chided, but the offending e-mail was deleted. No further action was taken by the company until Mr. Kenchi's attorneys threatened suit.

I discussed the case with Boyd, who noted that in the bulk of the federal court cases he's working on, the evidence that's being used to prove such offenses as sexual and racial harassment has been electronic. He said this about the deleted e-mail in the Kenchi case:

We know that one supervisor sent it to another supervisor; that they then agreed that they should delete it, both from their inbox and from their deleted mail box. Our client had occasion to find it preceding their decision to delete it. However, we also know that Hanes was able to find or recreate that e-mail months later, even though these two supervisors had deleted it. I presume they obtained it by virtue of a cloud backup or a hard drive backup, or both.


I asked Boyd if it was his contention that those supervisors had engaged in a cover-up. His response:

It is not just my contention; it is an established matter of record. We have the communication, we have the investigative file where they both agreed amongst themselves, this should be deleted, this should be covered up.

When I asked him if their actions constitute obstruction of justice, Boyd said this:

That's a decision for the court to make, and not for me to make. I would certainly argue that it is the type of conduct that is reprehensible, and would expose the company-and we've alleged that they should be exposed-to punitive damages. That is, not just to pay money to compensate our client for what he endured, but also to pay money for the reprehensible conduct of the supervisor who sent the e-mail, and the supervisor who agreed to delete it. Because indeed without the luck of him finding the e-mail on his own, this racist behavior at Hanes, at the highest of levels, would have continued. I would argue, and I think most people would agree, that an African-American would never have a fair chance at Hanes, had this not been discovered.

What then, should managers do when they become aware of the existence of incriminating e-mails? Boyd's response:

The thing they should do is immediately act; immediately investigate; immediately reprimand the party or parties who originated the e-mail; and then do everything that they can to communicate to the company at large that this kind of conduct is not acceptable, and must be corrected. One of the temptations for a company-I think it's a horrible one, but nevertheless it is the case that it is a temptation-is for the company to try to just keep the mistake a secret. If you keep the mistake a secret, then nobody else learns from it, and the environment does not get any better. Obviously address the offending parties; obviously offer training on the subject; and obviously, I think, communicate the reprehensibility and the unacceptability of the conduct to other parties working at your company, so it doesn't happen again.


More from Our Network
Add Comment      Leave a comment on this blog post
Dec 22, 2010 4:21 AM Steven Moshlak Steven Moshlak  says:

My name is Steven Moshlak and I am with Computerlegalexperts.com.  I perform computer forensics involving both criminal, civil, employment, family law and administrative matters.

 

First and foremost, the questions are, was the e-mail in question, deleted during the routine course of business?  Was it deleted after the lawsuit was served and a letter of preservation was sent?  Was such a letter sent by the Plaintiff's attorney, Patrick Boyd?

 

Major employers, with servers, keep an e-mail archive.  Employers will act responsibly and back their e-mails up on a daily basis.  Another way of finding this e-mail, may have been to have access to the hard drives of the defendant's hard drives and discovered it, using an expert, like myself.

 

Although I do not know of the circumstances behind the termination of Yunusa Kenchi, but I believe that the usage of a defamtory or derrogatory phrase or word, is unnacceptable, and upon receipt of the e-mail, Hanesbrands Inc., should have policies in place to deal with people who use this type of outrageous language on their systems.  The employee receiving this e-mail, should have forwarded it to HR for a prompt disposition and necessary correction of the offending employee.

 

The key here is when was the email deleted?  Was it before the lawsuit AND preservation letter was sent, or after?  If it was after, it may produce serious consequences for the Hanesbrands Corporation.

 

Should you have any questions, feel free to follow-up or contact me at 202-262-0225.

 

v/r,

 

Steven Moshlak

www.computerlegalexperts.com

Reply

Post a comment

 

 

 

 


(Maximum characters: 1200). You have 1200 characters left.

 

null
null

 

Subscribe to our Newsletters

Sign up now and get the best business technology insights direct to your inbox.