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On the Level

December 21, 2000
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With the general use of E-mail, the art of correspondence has taken a great leap forward in terms of speed, ease and convenience, unparalleled since the invention of the manual typewriter. Only a few years ago we might have said the same about fax communication, but fax seems to have been overshadowed by the advent of E-mail. For the savvy E-mail user—and by savvy I mean the user who remembers to log in and review incoming mail at least once a day—E-mail is fast, cheap and convenient for everything from the one-paragraph love letter to the multi-page draft contract. But (as with every technological advance), there is an up side and a down side. It is the down side we should be concerned about.

E-mail is inherently informal, which is both good and bad. It is good for arranging to meet someone for lunch tomorrow. (There isn’t much that needs to be said except when and where, and sometimes it is easier to do by E-mail than by playing telephone tag.) But this is only good if you are dealing with a savvy user; you can’t make plans for tomorrow by E-mail with someone who only logs in once a week.

Of course, we use E-mail for correspondence more formal than arranging lunch, but people are apt to continue the informality even when composing documents like bid proposals or letters negotiating settlements. The danger of informality is the risk of saying things in an off-handed way that one would not ordinarily use for formal communications. In a newsletter article titled “Pitfalls of Electronic Evidence,” Darrell Mook, a trial lawyer and partner in the Boston law firm of Burns & Levinson, wrote “... because of its inherently off-the-cuff nature ... (p)eople just tend to say more in an E-mail, and they are a lot less careful how they say it than in a formal memo or even in person.” Mook reminds us that the discovery process during a lawsuit will bring forth E-mail along with other relevant documents. Mook continues: “Document requests are typically vague and broad. They often ask for certain types of information and expect you to figure out where that information is located, in what form, and how to retrieve it.”

This brings up another danger of E-mail: When does an E-mail cease to exist? When communicating by E-mail we often delete our messages as we go without keeping a hard copy. During discovery in a certain case we may take the position that an E-mail does not exist and fail to produce it. Two problems: someone else may have kept a hard copy, producing it at trial, thereby making us look bad.

The more insidious problem revolves around our assumption that a deleted E-mail no longer exists. Mook writes, “When you delete documents or E-mails sent or received, that does not mean they no longer exist. That information may be recovered if it hasn’t been overwritten by newly created documents.” Mook’s warning, which ought to grab our attention, is “... if your failure to preserve or turn over electronic evidence appears intentional or particularly egregious, the court might order you to pay substantial sanctions or even summarily enter a judgment against you in the lawsuit.”

Mook offers some sobering advice to employers as soon as they detect the threat of lawsuit: Secure all backup tapes and make sure new backup tapes are preserved as they are created. Also, recover deleted documents that may be salvagable from computers of employees who created or worked on key documents, and locate and preserve any floppy disks that may contain evidence.

Consider a hypothetical case:

Ned Northstar, the proprietor of a mid-sized engineering and surveying company, designed a residential subdivision with all the required infrastructure. One of his survey crews, working out of a field office, laid out the subdivision for construction a year ago. Now part of the storm water management system has failed in a major rainstorm and the developer has filed suit against Northstar for professional negligence. When the problem first came to light, Northstar’s chief surveyor in the field office exchanged several communications with the developer, the developer’s site superintendent, Northstar’s chief engineer who designed the storm water management system and Northstar himself.

Communications flowed back and forth among all the principle characters until eventually the lawyers stepped in and advised no more communications between Northstar’s people and the developer and his people. Discovery begins with the developer’s attorney demanding all documents, notes and communications from Northstar’s files. Some of the communications were by telephone and some were by regular mail. But in the first days following the rainstorm there were several E-mail transmissions from the field office back to the engineer in the main office, most of which were deleted without printed out copies. Northstar produced a few

E-mail copies that were preserved and claimed the rest to have been deleted without copies.

Following several demands from the developer’s lawyer and several denials from Northstar, they all go off to court. In testimony, Northstar’s chief surveyor cannot remember the substance of several early E-mail messages he sent to the company’s chief engineer, nor can the engineer.

Everyone, including the jury, is visibly astonished a day later when the developer produced, in open court, a copy of an E-mail message from the chief surveyor to the chief engineer reminding him of company policy never to admit liability for the company’s negligence. In a reply to the E-mail, the engineer agreed with the surveyor and said that storm water management systems are complicated and the developer, who never went beyond high school, and his “mouthpiece” lawyer will never be able to prove anything anyway. During the next recess from testimony Mr. Northstar makes a generous offer of settlement to the developer.

Our hypothetical case shows what can happen as a result of careless business correspondence. Employers are also concerned about unauthorized personal use of company E-mail. Employees are supposed to use company E-mail for company business on company time. Any other use may be seen as cheating the employer. A worse case could occur when an employee sends a gratuitous E-mail message that implicates or compromises the company, such as a letter to the local newspaper criticizing the local planning commission as “a bunch of incompetents.” Sexual harassment and copyright infringement are additional concerns. The September/October issue of “Guidelines for Improving Practice,” a publication of Victor O. Schinnerer & Co. Inc. offers several advisory statements employers might consider adopting as standard company policy:

  • Transmissions are not private. Courts have ruled that E-mail is an inherently public means of communication in which users lack any reasonable expectation of privacy.

  • E-mail use may (or will) be subject to monitoring. Although the international monitoring of electronic communications is a felony, the monitoring of employees’ electronic messages has been held not to violate the federal statute.

  • Only company-related use is authorized; any personal use, or any use for illegal or unethical purposes, is prohibited.

  • Unauthorized E-mail use can lead to discipline up to and including discharge.

The Schinnerer advisory may seem harsh, but proprietor/employers are faced with a harsh business climate when it comes to liability for negligence and other forms of malfeasance.

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