Campbell v. General Dynamics (Federal Court of Appeals for the First Circuit) 

Roderick Campbell was employed at-will as an engineer by General Dynamics Government System Corporation (“GDGS”) from February 18, 2000 until he was fired on December 30, 2002. During his employment, Campbell’s workplace was virtually paper-free and he did his work via email, using that medium to receive and review nearly all of his technical and administrative communications. On May 1, 2001, approximately twenty months before Campbell’s discharge, GDGS implemented a Dispute Resolution Policy (“DRP”), which, inter alia, required that employees arbitrate any discrimination claims relating to their employment. The DRP was first announced by a letter from the President of GDGS that was sent via company-wide email on April 30, 2001. The subject line of the email said, “G DeMuro [the president of GDGS at that time] – New Dispute Resolution Policy,” and the entire text of the email was a letter from DeMuro on company letterhead, which described the policy in general terms and provided hyper links to the policy itself and to a brochure covering basic information about the policy. The email letter expressly asked employees to “[p]lease review the enclosed materials carefully, as the DRP is an essential element of your employment relationship.” After his discharge, Campbell brought this action, claiming that GDGS discriminated against him because of an alleged disability, i.e. sleep apnea. GDGS moved, pursuant to the Federal Arbitration Act, for a stay of the action and an order requiring Campbell to submit his claim to arbitration in accordance with the DRP. On June 3, 2004, the Massachusetts Federal District Court denied GDGS’s motion and struck GDGS’s affirmative defense based on the DRP, solely on the ground that the email notice given to Campbell was not sufficient under the FAA, despite the facts that (a) GDGS’s IT log showed that Campbell had received and opened the email and (b) Campbell conceded that the company routinely used the intranet to communicate policies. The District Court based its decision on its own view (with no citation to the record or to any competent authority) of how email users behave in general (i.e., that most people reflexively open and delete mass emails without reading them), essentially taking judicial notice of these “facts” and applying them to the situation at hand, not even considering whether these general observations apply to the modern workplace where the use of email and a company’s intranet for communication and announcement of policies is not uncommon. GDGS has appealed the District Court’s decision to the First Circuit and, on November 2, 2004, NELF filed an amicus brief in support of GDGS and arguing for reversal of the District Court’s decision on the ground that the District Court improperly took judicial notice, in violation of Rule 201 of the Federal Rules of Evidence, of its own anecdotal and unsupported views concerning the general behavior of email users. Once those judicially noticed “facts” are removed, no factual basis remains for the District Court’s decision in this case.