Governor Cuomo’s Email Retention Policy Draws Criticism

Ciera Ambrose and Edgar M. Rivera, Esq. 

To show employment discrimination, Plaintiffs often rely on communications between them and their employer. Because email is the primary mode of communication in professional settings, often the only evidence of discrimination is contained in an email. For example, emails may contain correspondence between company decision-makers engaging in discriminatory practices. Without such emails, Plaintiffs lose the opportunity to fully present evidence of their employers’ bad acts.

Rule 26 of the Federal Rules of Civil Procedure reflects email’s important role in communication, requiring parties to a lawsuit to have access to each other’s electronically stored information (“ESI”). Examples of ESI include emails, instant messaging chats, documents, accounting databases, CAD/CAM files, Web sites, and any other electronic information that could be relevant evidence in a lawsuit.

A recent threat to the success of employment discrimination lawsuits comes from New York Governor Andrew Cuomo’s policy on email deletion in state agencies. In 2013, Governor Cuomo implemented a policy mandating that state workers’ emails be automatically deleted after 90 days. Although the policy requires emails that could potentially be sought in litigation to be retained for longer than three months, such emails must be manually flagged for retention by an employee; putting this burden on individual employers increases the risk of deletion of important or relevant documents.

Critics of the policy believe that deleting emails is unnecessary, limits access to public information, reduces government transparency, and limits government accountability. Indeed, the federal government has a seven year email retention policy.  Investigating allegations of discrimination takes much longer than 90 days. In response, state lawmakers met this month to address the issue and introduce legislation that would, among other things, retain emails of some state employees for at least seven years. Whether the law will be passed remains to be seen.

With these concerns in mind, there are steps employees can take to protect emails evidencing discrimination. According to Brett Snider, Esq. of FindLaw.com, keep hard copies and backups of email correspondence with your employer. Although it’s fairly easy to retrieve an email that you want to use as evidence, you should make a hard copy and a backup digital copy of that email just in case (however, always make sure that you are not violating any company policy regarding confidential information). This step is particularly important if you are a state employee because under the above-discussed policy email correspondence stored in your work e-mail may be deleted after 90 days.

Additionally, emails are considered an authentic representation of a person or company’s words to you or a third party. Courts, however, demand some form of proof that an email is genuine if it is not self-authenticating.  This can be provided by: witnesses—email senders or receivers can testify at trial to the email’s authenticity; signature blocks—business signature blocks in emails may count as self-authenticating trade inscriptions for purposes of federal evidence; and email addresses—the sender’s email address may be sufficient to prove that an email was sent from an entity if the address bears the company and/or employee’s name (e.g., johndoe@thecompanyname.com). You may also ask the other party to stipulate to an email’s authenticity if granted.

Employees must take steps to ensure that potentially useful evidence is preserved. If you believe your employer illegally discriminated against you, please contact The Harman Firm, LLP.