If you thought the "e" in e-mail stood for
"electronic," wise up. Nowadays, good old e-mail is
likely to be "evidence" if you, your company or any of
your employees is the target of a legal attack.
That's the lesson being hammered home across the country
over the past few years, beginning with Bill Gates' televised
failures to recall embarrassing e-mail dredged up during
Microsoft's antitrust hearings. Gates and Microsoft escaped
that incident without serious damage, but the costs of failure to
police e-mail are going up. Last fall, for instance, a manager at a
Wall Street investment firm was sentenced to one to three years in
jail, fined $400,000, and barred from the securities industry for
life for destroying e-mail sought by prosecutors in a trading
scandal.
Your chances of being caught in a similar trap are going up,
too. In a 2001 survey conducted by the ePolicy Institute, an
education and research organization, 9 percent of U.S. companies
reported being ordered by a court or a regulator to cough up
e-mail. In 2003, the same survey found the number had risen to 14
percent. "E-mail has become a real target of almost every type
of business litigation," says Michael R. Overly, an attorney
with Foley &
Lardner in Los Angeles and author of E-Policy: How to Develop Computer, E-mail and
Internet Guidelines to Protect Your Company and Its Assets
(AMACOM).
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Unfortunately, e-mail presents a daunting challenge for
entrepreneurs. The problem starts with its image. Many people treat
e-mail as if it were casual and informal, when it is anything but.
It may not carry a company letterhead or a signature, but e-mail
has the same legal weight as any memo, letter, report or other
written document your company prepares. "It's when people
forget that they have the same responsibilities as when they were
negotiating a contract that they run into trouble," says
Stephen Northcutt, director of training and certification for The
SANS Institute, a Bethesda, Maryland, computer security
organization.
E-mail also seems less permanent than other written
communication, but e-mail may be more permanent than printed
documents, warns Rick Edvalson, president of IntegriNet Solutions
LLC, a Boise, Idaho, computer services firm. Copies of e-mail are
created on your computer and recipients' computers as well as
on any mail-server computers that relay the mail. Some copies will
be backed up to tape and stored indefinitely. "They acquire an
eternal life of their own," says Edvalson.
Any of those e-mail messages could become key evidence in civil
or criminal litigation involving your firm. What to do? Experts
recommend three steps:
1. Have a written e-mail policy. It should govern what
can be said in e-mail as well as how long e-mail is to be kept.
SANS Institute guidelines suggest keeping e-mail on administrative
and financial matters for four years and general correspondence for
one year. "Ephemeral correspondence" such as personal
messages and status reports can be destroyed after reading. See a
sample policy at www.sans.org.
2. Train employees in the use of the policy. For
instance, teach them to categorize e-mail as administrative,
financial or other types with a line at the top of the message,
making it easier to sort and dispose of e-mail as appropriate.
Explain the purpose of the policy as well as penalties for failure
to follow it.
3. Enforce those penalties. Twenty-two percent of
companies surveyed by the ePolicy
Institute said they had fired people for failing to follow
company e-mail policy. That kind of enforcement may convince a
judge or jury that you tried to control your e-mail in good faith
and save you embarrassment or worse.
Whatever you do, don't forget that e-mail can be evidence.
"E-mail is a document like any other," says Edvalson.
"These files are not benign and innocuous. They carry meaning
and importance that can affect the well-being of the
company."
Mark Henricks writes on business and technology for leading
publications and is author of Not Just a Living.