Suspicious Email Results In Dismissal Of Employee’s Claims

Posted by Gregg Mayer on Thursday, April 3rd, 2008   

In an employment discrimination lawsuit in New York, a printed-out copy of an alleged “smoking gun” email message took center stage when its authenticity was called into doubt.

The case, Bell v. Rochester Gas & Electric Corp., involves Bell’s claim that he was illegally fired from the company Energetix because of his race. As part of his proof, Bell provided the court with an alleged hard copy of an email message. The hard copy was allegedly found either “weeks or months” after Bell’s termination by another employee within a stack of recently printed papers.

The email, purportedly written by Bell’s supervisor to another supervisor, contained racist statements about Bell’s firing. The supervisors denied ever writing or receiving the email. Energetix investigated the alleged email, as described in the March 26 court opinion:

Energetix conducted an internal investigation to determine whether [the email] had originated there. After a search [of the supervisors’] hard drives gave no indication that the message had ever been sent, received, stored, deleted or printed from their e-mail files, Energetix retained the services [of an outside vendor] to restore backup tapes of its e-mail server and search for electronic copies of the message between April 2002 and December 2002.

Again, nothing turned up. Energetix then hired another vendor to analyze the hard drives of the supervisors.

Despite these efforts, neither Energetix nor the two outside firms were able to find any evidence that the purported e-mail was ever written, sent, received or printed…

Bell argued that the email, which was marked as sent on May 21, 2002, was completely obliterated from the company’s servers before the implementation of backup tapes on June 2, 2002.

In a Sherlock Holmes-twist of logic, the court rejected Bell’s argument:

[O]ne need not be an expert in the field of computer forensics to recognize that if the e-mail had been sent by [one supervisor] on May 21, 2002 but deleted and overwritten at some point within the next twelve days to eradicate any trace of its existence such that it would not appear on any of the named defendants’ hard drives or Energetix’s daily backup tape for June 2, 2002, it would have been impossible…to have printed it…weeks or months after May 21, 2002, when [the other employee] allegedly discovered it, commingled with papers she had just printed and removed from a copier the previous day.

Taking all of the evidence as a whole, including evidence that Bell tampered with Energetix’s computer systems over billing, the court ruled there was sufficient evidence that Energetix fired Bell for non-discriminatory reasons. It dismissed Bell’s claims.

Although the court never directly called Bell’s email a fraud, it did note the ease with which email messages can be faked:

It is undisputed that e-mail messages can be easily fabricated, and a host of websites offer software and instructions for creating and/or sending faux e-mails…As such, a practical understanding of the available technology, both with respect to the fabrication of e-mails, and their preservation through electronic data, dictates that authentication of a printout as the hardcopy of a bona fide e-mail message now requires something more than a bar conclusion that the printout ‘appears to be’ an e-mail message.

Obviously, companies that have implemented effective and objective archiving systems have little fear of forged email messages since they can easily detect which email messages were sent or received within the system.

Leave a Reply

You must be logged in to post a comment.