Email - Nothing is off the Record
1995-03/10 Kevin E. Wolf

In recent years, businesses have begun to use computers to communicate, both internally and externally with other businesses, by use of electronic mail ("e-mail"). What few businesses may realize, however, is that when their employees are conversing by e-mail, they may be talking to a legal opponent.

Typically, copies of every e-mail message generated on a system are automatically stored on the system's hard drive. Often, businesses subsequently "download" such information onto backup files. When a business is sued, such electronically stored information becomes subject to "discovery," an evidentiary process that allows an opponent to gather all information relevant to the subject matter in litigation or that may simply lead to the discovery of relevant information. Because the definition of what is "discoverable information" is very broad, it is likely that an opponent can gain access to a business's electronically stored information.

Although a business may view information communicated through its e-mail system as confidential, such a belief is generally not a sufficient basis for withholding information from discovery. Communications may only be withheld if a business can demonstrate that they fall within one of the narrowly defined privileges, such as an attorney/client communication or a doctor/patient communication.

Therefore, to avoid e-mail becoming a discovery tool for an opponent, businesses should consider the following precautions:

Restrict Use of E-Mail to Business Purposes. Because e-mail is typically informal, it may by full of corporate gossip or derogatory or indiscrete remarks that can paint a vivid picture of corporate attitudes, knowledge and actions that would not otherwise be discernable by an opponent. To avoid such information becoming public, businesses should instruct their employees to limit their use of e-mail to business purposes and to avoid using any language that may be interpreted as offensive and/or discriminatory.

Monitor E-Mail Use. Occasional monitoring of e-mail messages may discourage personal use of an e-mail system and encourage employees to phrase messages more carefully. However, before monitoring e-mail, businesses should provide written notification to employees that monitoring may occur in order to remove employees' expectations of privacy in e-mail communications.

Adopt Policies Regarding Record Retention. There is no good reason to store e-mail messages once they have served their useful purpose. Businesses should develop specific policies on the retention and purging of e-mail and, in fact, on all information that is stored historically. To be effective, however, electronic purging must include both main systems and backup tapes.

Unless a business keeps in mind that litigation discovery is always a possibility, the technology it relies on today may become its worse enemy tomorrow. Employees using e-mail should be alerted that nothing is "off the record" or "just between us" and should govern themselves accordingly. If a business does not have adequate procedures in place to regulate, monitor, and eliminate e-mail messages, its secrets may not be secret for long.

© 1995 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.
This document provides information of a general nature regarding legislative or other legal developments. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed.