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. Subsequent to 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’ motion and struck GDGS’s affirmative defense based on the DRP, primarily on the ground that email was an insufficient method for giving notice 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 invalidate the arbitration policy and strike GDGS’s affirmative defense based on it.
GDGS appealed the District Court’s decision to the First Circuit and, on November 2, 2004, NELF filed an amicus brief 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. Rule 201 requires the Court to notify the parties of its intention to take judicial notice and provide an opportunity for evidence to be presented on the issues. It also permits judicial notice to be taken of only certain types of “facts,” which, NELF argued, do not include a court’s personal views on how email users behave. NELF argued that once the improperly judicially noticed “facts” are removed, no factual basis remains for the District Court’s decision in this case.
On May 23, 2005, the First Circuit issued its decision, upholding the District Court’s refusal to stay or dismiss the action to permit arbitration. However, unlike the District Court, the First Circuit based its decision not on the use of e-mail per se, but on the substantive inadequacy of the email notice in this particular case. With respect to the issue that had concerned NELF, the Court specifically noted that it did not share the District Court’s skepticism of the use of email notice and, to the contrary, found that, especially in light of Electronic Signatures in Global and national Commerce Act of 2000, 15 U.S.C. §§ 7001-7031, proper email notice would satisfy the Federal Arbitration Act’s “written provision” requirement and that “the choice of mass e-mail is not determinative of the appropriateness of the notice” at issue. Further, noting that this was a close case, the Court cautioned that its holding “should not be read as a general denunciation of e-mail as a medium for contract formation in the workplace.” It noted that “an e-mail, properly couched, can be an appropriate medium for forming an arbitration agreement.”