Many people who use e-mail in the workplace still see it as an informal means of communication — a way to talk with a friend while working; a quick note to the spouse to see what’s for dinner; or just easy access to a co-worker across the office. The truth, however, is there is nothing informal about e-mail. What is said through e-mail can be used against you and e-mail records have been subpoenaed in court.

“People have a tendency to use e-mail as conversation,” says John W. Dozier, president, Dozier Law Offices PC, Glen Allen, Va. “Problem is, it’s more like a written letter. If you wouldn’t put it in a written letter to someone, don’t put it in an e-mail.”

For example, if a building service contractor is sued for wrongful termination and his e-mail records are subpoenaed, any correspondence that contains derogatory remarks could be used against him.

E-mail’s fast communication may be an asset when under the gun, but it can also cause regrets.

“When you hit ‘send,’ it’s gone. It’s not like you can call the mailroom looking for an envelope,” says lawyer Fritz Damm, partner, Clark Hill PLC, Detroit, Mich. “When you hit that button, [the e-mail] better be something you want that other person to see.”

If you’re worried that there may be some damaging remarks currently sitting in your inbox, simply moving them to the trash won’t make them go away. Though a costly process, deleted e-mails can still be recovered and recreated from the hard drive. More common are companies with back-up programs in case systems crash. These back-ups also keep e-mail records on file.

So, the best place to start to help ensure that your company won’t be held liable for e-mail correspondence is at the beginning.

“People have to make sure they don’t put anything in an e-mail that you don’t want people to see,” says Damm.

Damm recommends having a company policy that covers the proper uses of e-mail and what types of communication should never be handled electronically.

Saving grace
Content aside, there are some advantages to having an overstuffed inbox. Keeping old e-mails provides proof against false claims.

“It’s a double edged sword. You’re also keeping evidence of anything you may have liability for,” says Dozier. “You have to ask yourself a question: Are you more concerned with what could be discovered, or with protecting yourself?”

Dozier cautions that e-mails can be manipulated or falsified. Having a record of the e-mails you sent will decrease the legitimacy of the evidence against you.

Keeping all e-mail correspondence can amount to a hefty stack of paperwork — reviewing them could be a daunting and costly task if the records are subpoenaed.

“The more information that you keep, whether in e-mail or hard file, the more information your lawyer has to review,” says Dozier. “It’s a risk to pay a bigger lawyer’s fee, but on the flip side, having liability for something you didn’t do diminishes greatly.”

However, if you have a legal team with a skilled technologist, you can write a computer program to pull out relevant e-mails in less time than it would take to review all the e-mails, says Dozier.

Storing the backlog of e-mails might not be an option for some. Just as a warehouse can only hold so many paper documents, computers can only hold so many gigabytes, says Damm. Companies with document retention programs should determine and stick to, a time frame for deleting the archive. (90 days is common.) Without a policy in place, companies can be accused of destroying evidence, an offense with serious consequences.




POSTED ON: 3/1/2004