E-Communications and the Law

Richard Hall
October 24, 2008 — 1,098 views  

Electronic communication enables us to expedite communications and quickly exchange information. Yet, there is a price to pay for ease of use. Most companies typically have well established guidelines regarding hard copy documents. There are policies that guide the communication as well as destruction and retention. Electronic communication presents a different type of challenge for companies but one that they cannot afford to ignore.

To frame the discussion one must first consider the sheer volume of electronic communications. In example if a company has10,000 employees and each employee sends only one email per day that would result in 200,000 emails per month! Prior to the availability of email, employees were not so prolific. It is hard to imagine that any one company would have typed and mailed 10,000 letters per day.

The volume alone represents a unique challenge. Electronic documents including email are generally discoverable in lawsuits. As such there is a need for clear cut use and retention policies. Email can be the final nail in a legal coffin. How does a corporation control such a massive amount of information to ensure that they are not unduly exposed to legal risks? What policies govern the use of company email? How long should electronic documents be stored and subsequently open to discovery in a legal dispute?

Corporations are still evolving in their approach to the email dilemma. The solution will depend on the company culture, its risk profile and their available resources. Companies have every right to establish policies that limit email communication to business only. While this may seem unfair to employees, it is the company that will bear the full impact of litigation that results from or involves employee email communication. Some companies have gone as far to block internet access, enforce business use only policies and monitor email communications. Others have no policy or one that is not clearly enforced.

Implementing and monitoring email use can be a difficult challenge. Ultimately, it requires employees to comply with the established policies. Some employees feel it is an undue burden to completely restrict email to business use. They may argue that they may need to communicate with family members, sitters or even take care of personal business during the work day. Again, each company will have to set forth policies that are appropriate for their company culture.

One of the unique problems of electronic communication is the prevailing casual attitude toward them. People often hit the send button without considering that electronic communication does not vaporize into cyberspace but lives on in perpetuity. In no other media is it so clear that your words can come back to haunt you. People do not generally exercise the same amount of caution as they would in hard copy documents. Can you imagine someone taking the time to copy an off color joke and mailing it to all of their friends on the company's stationery? Yet, this goes on everyday in the typical business environment. Many employees may not understand the risk of inappropriate communications. Companies may also not realize the potential exposure. During the Hurricane Katrina crisis, then head of FEMA, Michael D. Brown was thrust into the public spotlight due to email communication. His inter company emails which focused on his attire rather than the crisis at hand cast FEMA in a negative light and ultimately forced Brown to resign from his position. In the famous Microsoft case, the justice department used emails written by Bill Gates to support allegations that Microsoft was unfairly using its monopoly to drive away competition. In lesser known cases, employees have brought sexual harassment and racial discrimination lawsuits against their companies with email as a key component of their claim.

As electronic communications are discoverable in a lawsuit, the question of retention also needs to be addressed. How long should a company store emails? Most organizations have opted to retain email for thirty to ninety days. Here again, it will largely depend on the company culture. In limiting the retention, you are also limiting the discovery of potentially harmful information. Unlike hard copy documents which are often stored for several years, company servers inherently limit the time that emails can be stored. However, a company should have a clear written policy that is specific to electronic retention. A few email programs enable you to set reminders that documents will be deleted. This however, will only apply to electronic documents stored on the company's email server. If employees have moved emails to a hard drive or removable media, this use of technology will not help. The company policy should include guidelines about moving and storing documents outside of the company server.

And most companies routinely backup servers and archive those backups offsite. This is good IT policy but creates another point of legal vulnerability. Backup retention policies must also be clearly defined. And, contrary to popular belief, when you hit the "delete" button, your email or document isn't really gone. Using readily available technology, "deleted" files can be easily recovered unless the storage medium was "wiped" clean.

Lastly, make sure employees understand that they have no right of privacy for email any more than they do for letters and calls. Those emails to your boyfriend or girlfriend can be read by your superiors with no explanation necessary!

In the post-Enron world, companies must have a clearly defined and monitored policy around electronic communication use and retention. It is equally important to ensure that employees understand the need for compliance. As with all risk management, it must become embedded in the company culture to have the highest rate of success and compliance. Finally, policies must evolve to keep pace with the growth of the technology itself. As organizations extend the access of electronic communication to mobile devices, it is certain that new challenges will continue to arise.

About the Author

Richard A. Hall is founder and President/CEO of LexTech, Inc., a legal information consulting company. In 1994, Mr. Hall invented linguistic modeling software which automatically reads, applies budget codes, budget codes and analyzes legal bill content. He also served as California Director and lecturer for a nationwide bar review. Mr. Hall continues to practice law and perform pro bono services for several Northern California judicial districts.

Richard Hall