• An E-Mail Explosion - The Internet Bursts Into The Courtroom
  • April 29, 2003 | Author: Cameron G. Shilling
  • Law Firm: McLane, Graf, Raulerson & Middleton Professional Association - Manchester Office
  • The greatest social issues of the times ultimately are played out in courts. The Internet and e-mail are no exception. The Supreme Court's recent decision to strike down a prohibition on virtual child pornography is one example. A federal appellate court, as another example, recently permitted an e-business to serve a lawsuit on a foreign trademark infringer via e-mail.

    While this may not seem progressive, for the staid legal profession it was a jump into hyperspace, or cyberspace as the case may be. The Internet is also bursting into the courtroom through the use of e-mail. E-mail is a shiny new toy for litigation attorneys-often the dream evidence, or the proverbial smoking gun. That dream can turn into a nightmare for businesses unaware of the legal issues arising from the e-mail explosion.

    E-Mail is Honest

    The psychology of e-mail permits us to communicate facts in writing that we previously communicated orally. These communications are laden with emotional remarks-sometimes accurate, sometimes not-made contemporaneously with the underlying event. This honest dialog can be helpful to business. But in front of a jury, it is powerful evidence of the true thoughts of the people involved, and the critical facts of a case. Just ask President Clinton, who had to explain Monica Lewinsky's e-mail, "Nice that the Big Creep didn't even try to call me on V-day." In the Rodney King trial, a $3.8 Million verdict was the result of an e-mail from one of the police officers involved, describing the incident as "right out of Gorillas in the Mist."

    E-mail is equally powerful in businesses litigation. In the Microsoft anti-trust case, Bill Gates was forced to live by his e-mail, "Do we have a clear plan on what we want Apple to do to undermine Sun?" In a software case I handled recently, the other company was similarly stuck with e-mail admissions of its employees, like "We have missed every major pre-agreed deadline. We repeatedly and confidently told them we would make it, and then did not perform."

    Control the E-Mail Explosion

    • Implement an electronic communications policy
    • Purge electronic storage systems on a short term basis
    • Notify employees that e-mail is not private

    To avoid this nightmare, businesses must change the psychology of e-mail. E-mail is a business tool-no different than a memo or letter-never a means for casual dialog or venting. Companies should adopt policies that define appropriate electronic communications, and enforce them through employee training and discipline. On the lighter side, here are two tips which, if followed, would prevent most bad e-mail. First, if you would be embarrassed to say something to your mother, you should not write it in e-mail. And second, never send e-mail in frustration-if you cannot say something to someone's face, you should not say it in an e-mail either.

    E-Mail Is Permanent

    Another aspect of the psychology of e-mail is that it is short-lived. Not so. Intricate and redundant computer back-up systems render electronic documents even more permanent than paper documents. This can create a litigation nightmare in itself. Computer back-ups contain huge amounts of usually undifferentiated data. In lawsuits, companies are often required to search that data to locate information discoverable by the other party. These searches consume a huge amount of time and money-upwards of $25,000 for a moderately complex back-up system. The party producing the information almost invariably must bear this cost, without reimbursement from the other party. Worst of all, time and money is spent on a process that usually unearths only harmful documents.

    Back-up systems also are prone to error, resulting in lost or destroyed data. This is called "spoliation," a nasty legal doctrine that applies when evidence is lost or destroyed. The penalties could include a court ordered verdict for the other party, an instruction to the jury that it may infer the evidence was harmful, an order to pay the other party's attorneys' fees, and fines. For example, Proctor & Gamble recently was fined $10,000 for inadvertently erasing e-mail.

    Avoiding this litigation nightmare requires a computer back-up system that organizes stored data, and is purged after a short period of time. The purging must stop, however, once a company becomes aware of the likelihood of a lawsuit, as Prudential learned in a case where it was fined $1 Million for destruction of electronic documents.

    E-Mail Is Not Private

    It is imperative that businesses notify employees that e-mail is not private. Leaving employees with an expectation of privacy in e-mail is dangerous, because there are certain situations in which a company has a legitimate interest in investigating an employee's electronic documents. For example, e-mail is the preferred method for employees to transfer proprietary information outside of the company, and a common means of harassment. Microsoft learned this lesson in one of the first sexual harassment cases based on forwarded e-mail jokes.

    Without a notice to employees that e-mail is not private, businesses may lose the right to search an employee's electronic documents. Federal law prohibits the interception of electronic communications, and the searching of stored electronic data. It is unsettled whether this law, which contains both criminal and civil penalties, applies to a company searching its employee's electronic documents. But it is clear that employers can escape liability under that law, as well as for common law claims of "invasion of privacy," by clearly notifying employees that the company has the right to monitor and access electronic documents, and routinely does so.