When former FEMA Director Michael Brown sent a colleague an e-mail asking, "Can I quit now?" during the Hurricane Katrina recovery efforts, he revealed his true feelings about the situation to more people than just the intended recipient of the message. With his government status making his electronic communications fair game, Brown's e-mail circulated through Web sites and newspapers and eventually to the Senate floor as the government probed FEMA's fumbled response to the hurricane.
The fact that Brown's e-mail led to bad publicity isn't a new phenomenon. Today, the ease with which a seemingly innocent comment can become the focal point of an investigation is a serious concern for in-house counsel.
John Callison, senior deputy general counsel of Vanderbilt University, has experienced this first hand. After a student filed suit against the university, one faculty member sent an e-mail to a colleague joking that a possible solution to the problem was to "shoot" the student. In response to discovery, Callison had to provide a copy of the e-mail to the student and his mother.
"Taking the e-mail literally, the mother asked that the University provide personal security for them at her son's graduation, claiming that she feared the faculty member might harm her son," Callison said. "You cannot predict or control how someone will interpret an e-mail."
Callison and other attendees at a recent Martindale-Hubbell Counsel To Counsel Forum in Atlanta titled "Managing Discovery in the Digital Age" shared their best practices for steering clear of such e-discovery landmines. Participants agreed that a strong offense is the best defense, and that counsel can most effectively keep e-discovery problems at bay by educating their employees about appropriate uses of e-mail and creating strong ties with their IT departments.
Playing The Offense
According to forum facilitator Laura Meherg, U.S. workers send out approximately 2.8 billion e-mails a day. The huge volume of e-mail coupled with its casual nature creates countless liabilities within organizations. Counsel's first line of defense is to raise employees' awareness of the consequences of careless e-mailing and force them to think before clicking "send."
"It's very difficult for a lot of people to express themselves clearly and succinctly in e-mails," said Sean Bowen, vice president and GC of Internet Security Systems Inc., a provider of services that protect businesses from Internet threats. "The first thing we recommend to our clients is to pick up the phone."
While circumventing the problem at the source may seem like common sense, training employees on basic e-mail etiquette is a key protection many companies overlook. E-mails should be used to memorialize documents, Bowen said, and should only be sent after careful consideration.
One case in point involved a 1999 wrongful death suit involving the diet drug fen-phen. In Linnen v. A.H. Robins Co., the pharmaceutical company spent more than $1 million to retrieve data from backup tapes to respond to discovery requests only to hand over to the plaintiffs an e-mail with a quote from an employee that read: "Do I have to look forward to spending my waning years writing checks to fat people worried about a silly lung problem?" A. H. Robins settled the case for $3.75 billion.
"Pretend that the e-mail is going to be blown up on a three-by-five-foot board and standing in front of a jury," said Laura Owens, head of Alston & Bird's products liability practice group. "Or pretend that you're reading it in the Wall Street Journal tomorrow, and then consider whether you want to send it."
Another proactive, cost-saving measure participants shared was to limit the number of "threads" contained in an e-mail message.
Jeane Thomas, partner at Crowell & Moring, tells clients to remove unnecessary duplication. "Someone will attach a document to an e-mail, and it will go to 10 or 20 people. Then it will get forwarded to more people, and the attachments keep riding along."
Training staff to avoid using the "reply to all" button may significantly limit unnecessary volume.
Another area of concern is metadata--the encoded information that describes when and where data such as an e-mail came from. While most lawyers are unaware of metadata's existence, understanding what it is, where it is and whether you need to delete it can affect e-discovery liabilities.
Participants at the forum pointed to a 2005 case, Williams v. Sprint/ United Mgmt Co., in which a party responding to a discovery request scrubbed metadata from an Excel spreadsheet. A Kansas court held that in most cases, "ordinary course of business" document productions must include intact metadata. The case sends a warning to counsel about the need to educate employees about maintaining metadata.
"Care should be taken to ensure that documents and other records cannot be 're-engineered' so that any metadata could be used to trace prior iterations of such documents and records," said Scott Burton, general counsel of ING North America Insurance Corp.
Knowing The Team
While in-house counsel need to take the lead on the many landmines associated with e-discovery, it is not a one-man battle. Creating strong ties with the company's IT team is one of the best lines of defense in the event of an e-discovery request.
Victor Franklin, general counsel of Washington Savannah River Co., argues that it is imperative that in-house counsel familiarize themselves with the IT department.
"You need to have someone from legal sit down with the IT people and draw the daisy wheel of where all the information goes once it comes in and once it goes out so you understand the process from a litigation standpoint."
Owens agreed, arguing that clients commonly turn to her for answers about their internal mailing systems when they could quickly learn the answers from their IT teams.
"We have to back up and say 'well, your IT people are on the front end and know your systems best. They have to be involved in the e-discovery process.'"
At Washington Savannah River, Franklin forces his IT staff and legal department to participate in test runs. Working together, the team mapped out a plan it can put into effect if a lawsuit comes through the door.
In addition to educating staff on the pitfalls of careless e-mailing, in-house counsel at the forum agreed that forging strong relations with IT is an important best practice that all in-house counsel should add to their agenda.
"You need to collaborate with your information technology people, your in-house lawyers and your business people to have that team working to anticipate what is going to happen," said William Vetter, associate GC at Rockwell Automation Inc. "The consciousness-raising within your company is the thing that can really make a difference."