InsideTech » January 2008
E-mail Emergencies
The fastest growing form of communication might also be the most dangerous for companies. Legal technology expert Brett Burney gives his take on e-mail risks and how you can avoid them.
It doesn’t take long to grow weary of the army of e-discovery products that promise to preserve, analyze and organize your company's e-mail factories. Each product has a legitimate cause to fight for, but no software can fully protect a company from the rascally typing fingers of its own employees.
E-mail is a crucial and frugal communication tool in today's professional world. Phone calls can take too much time and no one wants to waste a stamp when you can just hit "Send" instead.
Unfortunately, e-mail's ease of use frequently invites an appalling relaxation of standards. Employees perceive their electronic conversations as temporal, private, anonymous, and intimate—hardly anyone considers an e-mail message the same as a printed letter on embossed company letterhead.
In other words, people will say anything in an e-mail. People are tremendously cavalier and neglectful when authoring e-mail messages. Because of this, e-mails routinely become the veritable "smoking gun" in contemporary litigation matters.
Consider, for example, the seminal e-discovery Zubulake v. UBS Warburg LLC opinions where an HR supervisor's e-mail revealed that the company intended to "exit" Ms. Zubulake "ASAP" in part so she would not be eligible for "bonus consideration."
You may also recall the oft-quoted e-mail from the Linnen v. A.H. Robbins Co. "Fen-Phen" case where an employee of the pharmaceutical company lamented how he would spend his "waning years writing checks to fat people worried about a silly lung problem."
These examples and countless others reveal a glaring need for risk management that cannot be solely solved by e-discovery or e-mail archival software. Applications can flag keywords and routinely delete unnecessary e-mails, but they can't stop employees from typing ignorant and regrettable things.
A strict e-mail usage policy is a primary step in addressing potential e-mail chaos. Employees must be prohibited from using offensive language in an e-mail and no one should be allowed to use the company e-mail system for personal reasons (and vice-versa).
The rules on e-mail use should graft comfortably on to a well-designed and rigid records retention policy. Superfluous e-mails should be consistently destroyed while potentially relevant messages should be pristinely preserved. This is much easier said than done, but established policies will supervise any errant e-mail habits.
Policies are meaningless when employees are unaware they exist. Routine training is a necessary and annoying evil, but proactive measures can save the company from looking down the barrel of that "smoking gun."
