When Lance Corporal Justin Ellsworth died in Iraq in November 2004, his dad wanted copies of his e-mails, but was denied when he asked Yahoo! for his son's password. The Ellsworth family went to court, and a probate judge required Yahoo! to release the e-mail.
While ex-employees' e-mails may not be as dramatic as a soldier's last words, they may contain important company information. Who really owns company e-mail is a big issue, as personal and work-related e-mails intermingle in most accounts. "We're getting into this world of digital preservation of everything," says Tom Triggs, partner and technology and internet specialist with law firm Bryan Cave in Santa Monica, California.
In cases of ex-employees seeking access to company e-mails, courts usually side with the employer. And it generally takes a court order for ISPs to open e-mail accounts to second parties. In the Ellsworth case, "I don't think Yahoo! minded giving [the e-mails]," says Peter Vogel, partner and e-commerce specialist with law firm Gardere Wynne Sewell in Dallas. "[But] they wanted to live up to their policy."
Unless you own your own e-mail server, ask employees to sign a document stating that e-mails are company property. Also discuss what you'll do if a relative claims inheritance rights. Some ISPs aren't waiting for the law to catch up: AOL has a staff member who handles inheritance requests.