Threat of Litigation by Email: Minnesota Legal Risks

What Makes an Emailed Threat to Sue Different From a Mailed Letter?

An email is a permanent record that can be forwarded, quoted, and offered against your company in court as your company’s own statement. Minnesota’s settlement-negotiation rule protects only compromise talks over a genuinely disputed claim, so a threat that offers no compromise has little protection.

Under Minnesota Rule of Evidence 801(d)(2), a statement offered against a party is not hearsay when it is the party’s own statement or “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” An email from your sales manager about a customer dispute can fit that description. The quick reply sent from a phone, the forward to a coworker with a frank comment, and the reply-all that reaches the wrong person all become part of the record the other side may obtain in discovery. Communications with your lawyer may be protected by the attorney-client privilege, but a threat sent to the other side is not.

Minnesota Rule of Evidence 408 gives limited protection. An offer to compromise a disputed claim “is not admissible to prove liability for or invalidity of the claim or its amount,” and “Evidence of conduct or statements made in compromise negotiations is likewise not admissible.” The committee comment adds: “Before the rule of exclusion is applicable there must be a genuine dispute as to either validity or amount.” The rule also does not reach evidence offered for another purpose, and “This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.” I suggest writing every threat email as if a judge will read it, because one may.

When Does a Threat in an Email Become a Crime in Minnesota?

Minnesota’s coercion statute lists the threats it covers, and a plain threat to file a civil lawsuit is not on the list. A threat becomes coercion when it threatens a criminal charge, or an unlawful injury to a business, and thereby causes the recipient to act against their will. A listed threat that fails is still a crime: under Minn. Stat. § 609.275, “Whoever makes a threat within the meaning of section 609.27, subdivision 1, clauses (1) to (6), but fails to cause the intended act or forbearance, commits an attempt to coerce.”

Under Minn. Stat. § 609.27, subd. 1, “Whoever orally or in writing makes any of the following threats and thereby causes another against the other’s will to do any act or forbear doing a lawful act is guilty of coercion.” Two of the listed threats can arise in business disputes:

1. A threat of criminal charges. The statute lists “a threat to make or cause to be made a criminal charge, whether true or false.” An email saying you will report the other side to the police or the county attorney unless it pays fits that language, even if the accusation is true.
2. A threat to a business. The statute also lists “a threat to unlawfully injure a trade, business, profession, or calling.” That clause reaches only a threat to injure a business “unlawfully.”

A third clause, covering threats to expose a secret or publish a defamatory statement, no longer applies. In State v. Jorgenson, 946 N.W.2d 596 (Minn. 2020), the Minnesota Supreme Court held that clause unconstitutional on its face because it “criminalizes a substantial amount of protected speech.” The criminal-charge and business clauses were not at issue in that case.

Federal law adds a parallel crime for communications that cross state lines, such as an email to a recipient in another state. Under 18 U.S.C. § 875(d), it is a crime for “Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime.”

How Can Repeated Threat Emails Become Harassment?

Repeated emails can support a harassment restraining order when they are intrusive or unwanted and have, or are meant to have, a substantial adverse effect on the recipient’s safety, security, or privacy. A separate crime requires an intent to kill, injure, harass, or intimidate, plus a listed effect, such as conduct that “causes or would reasonably be expected to cause substantial emotional distress to the other person.”

Under Minn. Stat. § 609.748, subd. 1, harassment includes “repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.” A business relationship does not take the messages outside the statute. Under subdivision 2, “An application for relief under this section may be filed in the county of residence of either party or in the county in which the alleged harassment occurred.” Under subdivision 5, the court may issue the order if “the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.”

The criminal statute is narrower. Minn. Stat. § 609.749, subd. 2, reaches a person who “repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, messages, packages,” but only with intent and a listed effect. The person must act “with the intent to kill, injure, harass, or intimidate another person,” and the conduct must meet a listed effect. Conduct that “causes or would reasonably be expected to cause substantial emotional distress to the other person” is one listed effect. Subdivision 7 provides that “Conduct is not a crime under this section if it is performed” for listed reasons, including “to carry out a specific lawful commercial purpose or employment duty, is authorized or required by a valid contract, or is authorized, required, or protected by state, federal, or tribal law.” A stream of escalating messages after the recipient has asked you to stop matches the restraining-order statute’s description of repeated unwanted words, so I suggest one clear demand and, if needed, a single follow-up rather than a series of emails.

When Is an Accusation in a Threat Email Protected From a Defamation Claim?

An accusation in a pre-suit email is absolutely privileged in Minnesota only if it has some relation to a judicial proceeding, and the person claiming the privilege must prove it. Courts apply the privilege narrowly, so an accusation sent to people outside the dispute carries real risk.

In Matthis v. Kennedy, 67 N.W.2d 413 (Minn. 1954), the Minnesota Supreme Court said absolute privilege gives immunity “even for intentionally false statements, coupled with malice,” and it described the rule as “confined within narrow limits” in applying it to a remark at a probate hearing. In Mahoney & Hagberg v. Newgard, 729 N.W.2d 302 (Minn. 2007), which applied the privilege to a former legal secretary’s affidavit filed in another lawsuit, the court said the privilege “extends to statements published prior to the judicial proceeding, but in order for the privilege to apply, such statements must have some relation to the judicial proceeding,” and it placed the burden of proof on the person claiming the privilege. Expose v. Thad Wilderson & Associates, P.A., 889 N.W.2d 279 (Minn. 2016), was a suit under the Minnesota Health Records Act and for invasion of privacy. There the court repeated that the privilege “is not lightly granted and applies only in limited circumstances.” It concluded that an absolute privilege did not extend to an intern-therapist’s statement to prosecutors before a criminal trial or to her statements in a second conversation with the investigating officer.

Two practical points follow. Matthis also quoted the Restatement rule for a party’s own pre-suit communications. Under it, a party to private litigation “is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding” when “the matter has some relation thereto.” The same accusation copied to customers, vendors, a trade group, or a review site is a different publication, and you would carry the burden of showing it related to a proceeding. Calling someone a thief or a fraud in writing is the kind of statement covered in defamation per se, so I suggest describing the facts and the contract term breached rather than labeling the person.

When Does Your Company’s Duty to Preserve Evidence Begin?

Your company’s duty to preserve evidence starts when it knows or should know that a lawsuit is reasonably foreseeable, not when a suit is filed. I suggest that a company deciding to threaten a lawsuit treat that point as reached, because the duty binds the sender as well as the recipient.

In Miller v. Lankow, 801 N.W.2d 120 (Minn. 2011), the Minnesota Supreme Court held that the duty to preserve evidence exists “whenever a party knows or should know that litigation is reasonably foreseeable,” not only after a suit is filed. Breach of that duty “may be sanctioned, under a court’s inherent authority, as spoliation.” The court in Miller reversed a sanction against a homeowner and sent the case back for the trial court to apply a new standard on notice. Under that standard, a party with a legitimate need to change the evidence can protect itself by giving the other side sufficient notice and a full and fair opportunity to inspect.

The risk for the party planning to sue is concrete. In Patton v. Newmar Corp., 538 N.W.2d 116 (Minn. 1995), the owners of a motor home that caught fire had their expert inspect it, and the motor home was lost before they sued the manufacturer. Parts the expert had removed were lost too. The trial court excluded the expert’s evidence, and the Minnesota Supreme Court reinstated summary judgment for the manufacturer, writing that “the trial court is not only empowered, but is obligated to determine the consequences of the evidentiary loss.”

Before you send a threat, I suggest issuing a legal hold notice inside your company and turning off auto-delete for the mailboxes involved, because missing emails can become spoliation that weakens the very claim you are threatening.

Why Can a Threat Email Lead the Other Side to Sue First?

Once a dispute is concrete enough to threaten a lawsuit over, the recipient may be able to file first, in a court it chooses, and ask a judge to declare that it owes you nothing. Both Minnesota and federal law provide for that kind of suit.

Under Minn. Stat. § 555.01, “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed,” and “The declaration may be either affirmative or negative in form and effect.” Federal courts have the same power under 28 U.S.C. § 2201(a) “In a case of actual controversy within its jurisdiction.” A federal court “may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” The federal statute also lists subjects it does not reach, beginning “except with respect to Federal taxes.”

A recipient that files first may choose the timing and, within the venue rules, the place, which shifts some control of the dispute to it. The limits on that move are covered in the strategic considerations of a declaratory judgment action in Minnesota. I suggest sending a threat only when you are prepared to file promptly if the other side does not respond, because a threat followed by months of silence leaves the first move to the recipient.

When Does an Email Count as Written Notice of a Claim?

An email can serve as written notice when your contract allows it. Where a law, rather than the contract, requires a writing, Minnesota’s electronic-transactions act lets an email satisfy it between parties that agreed to deal electronically, unless that law names the method of sending. A written notice of claim also starts preverdict interest in Minnesota if you sue within the period the statute sets.

Start with the contract. Many contracts have a notice clause naming the method, such as certified mail or overnight courier, and the address. I suggest following that clause exactly, because a notice sent another way invites the argument that it was never given. Where a law, rather than the contract, requires a writing, Minn. Stat. § 325L.07 provides: “If a law requires a record to be in writing, an electronic record satisfies the law.” That rule has a limit in Minn. Stat. § 325L.05: “This chapter applies only to transactions between parties, each of which has agreed to conduct transactions by electronic means.” The agreement can be shown by “the context and surrounding circumstances, including the parties’ conduct,” so a relationship run by email helps. A second limit is in Minn. Stat. § 325L.08, paragraph (b): if a law other than that act requires a record “to be sent, communicated, or transmitted by a specified method,” then “the record must be sent, communicated, or transmitted by the method specified in the other law.”

Notice can be a deadline in itself. In a sale of goods, Minn. Stat. § 336.2-607 subsection (3)(a) provides that “the buyer must within a reasonable time after the buyer discovers or should have discovered any breach notify the seller of breach or be barred from any remedy,” a rule that applies once the buyer has accepted the goods. A clear email to the seller describing the defect can be that notice, so I suggest sending it when the problem is discovered rather than waiting until a lawsuit is planned.

A written notice of claim also has a financial benefit. Under Minn. Stat. § 549.09, subd. 1, preverdict interest on pecuniary damages generally runs “from the time of the commencement of the action or a demand for arbitration, or the time of a written notice of claim, whichever occurs first,” so a written notice sent before suit can start interest earlier. In Blehr v. Anderson, 955 N.W.2d 613 (Minn. App. 2021), the court of appeals held that a notice of claim “does not require a demand for a specific amount of money,” and it affirmed interest running from a law firm’s letter to the other driver’s automobile insurer. That letter identified the parties, the crash, and the client’s intent to pursue a claim. The notice must be sufficient, “in light of the circumstances known to the noticed party, to allow the noticed party to determine” its potential liability by an objective measure. Settlement offers can cut the interest back. If either party serves a written offer of settlement, the prevailing party receives interest “until the time of verdict, award, or report only if the amount of its offer is closer to the judgment or award than the amount of the opposing party’s offer.” If the losing party’s offer was closer, “the prevailing party shall receive interest only on the amount of the settlement offer or the judgment or award, whichever is less,” and only until the settlement offer was made. The statute also sets a condition, quoted here so you can check its current text: “The action must be commenced within two years of a written notice of claim for interest to begin to accrue from the time of the notice of claim.”

What Should a Litigation Threat Email Say, and Who Should Receive It?

A litigation threat email should state the facts, the contract term or legal claim involved, what you want, the civil action you will take if it is not done, and a date to respond. It should go only to the other party or its lawyer, and it should leave out threats of criminal charges, regulatory complaints, and public exposure.

The rules above point to a short checklist:

1. Name the claim and the facts. A description of what happened and which contract term was breached gives the recipient enough to assess its liability, which matters for preverdict interest under Blehr, and avoids labels that read as defamation.
2. State the civil remedy only. Say you will file suit or begin arbitration. Leave out any threat to go to the police or prosecutors, because the coercion statute lists “a threat to make or cause to be made a criminal charge, whether true or false.” Leave out threats of publicity as well, because for an email that crosses state lines the federal statute reaches a threat made “with intent to extort” that includes “any threat to injure the property or reputation of the addressee.”
3. Send it to the people in the dispute. Address the other party, or its lawyer once you know it has one, and leave customers, vendors, and the public off the email, because the absolute privilege depends on a relation to a judicial proceeding.
4. Follow the contract’s notice clause. Send the notice by the method and to the address the contract names, and use email as a copy unless the contract permits email notice.
5. Send one demand, not a campaign. Send one clear message and, if needed, a single follow-up, because repeated escalating emails can support a harassment restraining order.
6. Preserve your own records first. Issue a legal hold before you send, because your duty to preserve begins when you foresee the lawsuit.

A business collecting a consumer debt through an outside collector has one more rule to know. The federal Fair Debt Collection Practices Act applies to debts arising from transactions “primarily for personal, family, or household purposes,” and it forbids a debt collector’s “threat to take any action that cannot legally be taken or that is not intended to be taken” (15 U.S.C. § 1692e(5)). A debt from a business purchase falls outside that definition. A business collecting its own consumer debts can come within the act too: under 15 U.S.C. § 1692a(6), a creditor is treated as a debt collector if it “uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.”

Next Steps Before You Press Send

Before sending a litigation threat by email, four checks cover the main risks on this page. The first is whether the email states only a civil claim and a civil remedy. The second is whether it goes only to the other party or its lawyer. The third is whether your contract’s notice clause requires a method other than email. The fourth is whether your company has suspended deletion of the emails and documents the dispute will turn on.

More on how Minnesota business disputes are handled is on my business litigation page. If you are preparing to threaten a lawsuit by email, email [email protected] with a short description of the dispute and the parties involved. I can tell you whether your planned wording, recipients, and notice method leave an opening the other side could use against you, and whether a lawsuit, a demand letter, or another step fits your goal.