An October 2007 report by technology
market research firm The Radicati
Group estimates there were 1.2 billion e-mail users worldwide in 2007. The
same study states that the average business
user sent and received 600 e-mails each
week that year.
Apart from the technical burdens on companies to route and store all of those messages, companies must worry about what is
contained in all those e-mails. This is particularly true when the companies, or their
employees, become entangled in litigation
and the e-mails become evidence.
Smart Business spoke with Tony
Paganelli, a litigation partner with Taft
Stettinius & Hollister LLP in Indianapolis,
about what companies need to know to
protect themselves from their employees’
own e-mail messages.
How have e-mails become potential sources
of litigation for companies?
Every e-mail message has the potential to
become evidence in a lawsuit because it
documents a communication between people. This is especially important because
people are often careless about what they
put in e-mail messages. Since e-mails are
time-stamped when they are sent and are
difficult to alter, they can be very useful evidence. So I advise clients to be cautious in
what they put in e-mails because they may
be read by many people other than the
intended recipients, including lawyers,
judges and juries.
Is a confidentiality notice in an e-mail
enough to ensure that what is contained in
the e-mail is kept confidential?
No. Just because I put a confidentiality
notice at the bottom of my message, that’s
not binding upon someone unless he or she
has agreed with me to keep our communications confidential. The bigger problem is
when a message gets accidentally e-mailed
to someone else or it gets forwarded.
Someone who is a third- or fourth-level
recipient has no obligation to me unless he
or she has a separate agreement with me to
agree to keep my e-mails confidential. And
even if there is a confidentiality agreement, if someone is subpoenaed, the subpoena
sometimes trumps the confidentiality
agreement. (If you do have a confidentiality
agreement, it would be wise to include in
that agreement a requirement that the other
party notify you that he or she has received
a subpoena. That way, you get the opportunity to step in and oppose the subpoena.)
Do companies have an obligation to preserve
e-mails or other electronic evidence when a
lawsuit is threatened?
Yes. Once companies or individuals are
sued or anticipate litigation, they have an
obligation to preserve all relevant records
including e-mail. The sanctions for parties
who fail to do this can be staggering. If I’m
involved in a lawsuit, if I think I’m going to
be suing someone, or if I think there will be
litigation brought against me, I have a duty
to preserve relevant e-mail.
What proactive steps can a company take to
ensure it avoids any litigation regarding e-mails?
There is no way to ensure e-mails won’t
be part of a lawsuit. In fact, such a large percentage of business communication today
is done by e-mail that it’s very unusual for e-mail not to be part of the evidence in a lawsuit. But there are ways companies can
minimize their risks.
First, companies should educate their
employees about e-mail and the potential
uses to which their messages could be put.
This education should start with a
reminder to avoid the ‘reply to all’ button
whenever possible. They must adopt policies to control what employees are writing
in e-mail messages. The lesson that e-mail
should be treated more like a thoughtfully
drafted business letter than a watercooler
conversation should be firmly instilled into
employees’ minds. Employees should also
be told that management reserves the right
to review all e-mail messages sent or
received on company e-mail accounts, and
improper e-mailing can be grounds for
discipline.
Second, companies need to adopt and
enforce e-mail retention/destruction policies. Unless there is a compelling business
need to save e-mail messages forever, companies should establish a reasonable period
after which all e-mail messages will be permanently deleted (to the extent possible)
from company computers and servers. But
remember that these policies must be suspended when litigation is anticipated, since
the duty to preserve evidence trumps even
the most reasonable document destruction
schedule.
What steps should a company take after a
subpoena has been received?
Immediately upon receipt of the lawsuit,
management and IT staff should sit down
with their lawyer for a planning meeting to
establish three things: One, which e-mail
users’ accounts might have relevant e-mails? Two, where are those e-mail messages stored? On the server? On a backup
tape? On a BlackBerry? On the user’s laptop? On the user’s home computer? And
three, how can e-mails be gathered and
reviewed most efficiently?
TONY PAGANELLI is a partner with Taft Stettinius & Hollister LLP in Indianapolis, who concentrates his trial and arbitration practice in
business litigation, criminal defense and real estate/construction litigation. Reach him at (317) 713-3573 or [email protected].
