Email

Disasters and Penalties from Reckless Use

In just a decade, email has become the communication of choice for most businesses. Now, "Instant Messaging," sometimes referred to as "High Octane Email," is becoming increasingly popular. Unfortunately, however, both email and Instant Messaging are treated by almost everyone using them with the same informality as a personal conversation, with similar word usage, humor, slang and contemporaneous expressions of thought. There's often little or no deliberation or care in composing and preparing email or Instant Messages before sending them. That is quite different from most other written business communications, which are generally prepared with care, probably because of the perceived permanence of "the written word." Ironically, email and Instant Messaging are usually more "permanent" than a typical "hard copy" document because of storage on the sender's computer, server or back-up facility, on the computers, servers and back-up facilities maintained by the recipients and on similar hardware of the other parties to whom the recipients may have forwarded such email or copied Instant Messages.

Almost everyone, including the most respected and successful executives in many industries, prominent lawyers and senior officers and analysts on Wall Street and in our Country's largest Banks have erroneously assumed emails were private communications, just between sender and recipient and inaccessible to anyone else. Even NASA engineers have had to back away from emails discussing the likely Columbia disaster before it happened by describing their dire predictions as simply "musings." NASA engineers may only be embarrassed by such permanent digital thoughts, but for the business community, similar spontaneous comments have meant civil and even criminal liability.

Many recent violations of law or business standards by executives, professionals and their organizations were proven by emails recovered from various data storage devices. Fines, penalties and damages in the billions were assessed against these individuals or the venerable organizations they worked for, in no small part from carelessly written, highly opinionated and often facetious remarks in emails they had written.

As a result of these widely publicized cases, there have been numerous articles and media commentaries on email. Many of the articles even suggest that email be routinely deleted or destroyed soon after it's transmitted. That is probably not sound advice for most businesses. It will only handicap the organization engaged in such early systematic destruction. Copies of most, if not all deleted emails will probably be stored in either or both the recipients' computers or servers as well as such hardware of anyone the recipients forward those messages to. Should the organization with a routine and early email destruction policy be involved in litigation, the opponent or investigating governmental unit will probably quite easily obtain a copy of such emails from the recipient or "forwardees" well before the sender can obtain another copy.

On most occasions, the benefits of "destroying" the emails, routinely or otherwise, will be outweighed by the disadvantage of not having such data when an adverse party or the investigating government agency easily obtains it from others. In addition, as explained in detail in the important topic discussing Destruction of Records, if such "routine" destruction has the unlikely result of destroying the only copy of the email which could have been found, in any subsequent lawsuit, a Minnesota Court would very likely impose sanctions of sufficient severity to eliminate any disadvantage an adversary would suffer by the routinely destroyed emails.

There is a way to decrease the likelihood of these email horror stories recurring and it's not by a sender destroying or deleting them. Plain and simple, it's to implement a program in which every officer and employee of the organization is instructed and required to treat email the same as customarily prepared business letters and documents. Spur of the moment thoughts, opinions and flippant communications like those that recently impaled so many of our most successful business executives and professionals should be replaced with deliberate compositions.

The easiest method to implement this program is to slow the email process down. Do not write email messages in the email program itself and immediately transmit them. First prepare these messages in the same manner as other documents, using a word processing program. Then review and revise them and only then transmit the documents as email attachments. Preferably, if time permits, the document should be emailed no earlier than 24 hours after composition, so that the sending employee or officer can re-read and correct it after sufficient time to assure appropriate perspective and deliberation. Of course, emails will still be used as evidence at trial or in investigations, but at least those that are relevant will be prepared with deliberation and care similar to letters and other business documents, which both lawyers and their clients' officers and employees are familiar with. Slowing down email communication may impede the primary reason for using it, but for many communications, it's simply an inappropriate and often disastrous trade off of expediency over deliberation.

Businesses are beginning to use software and hardware that enable them to inexpensively store and easily retrieve earlier transmitted or received e-mail. In turn, this assures compliance with increasingly strict requirements to store and produce email records, particularly in response to government investigations or civil litigation. Ultimately, such storage and retrieval of archived email will likely be expected of most businesses to avoid both expenses and sanctions when and if those records are relevant to an investigation or judicial proceeding. Once that becomes the norm, the need to compose email messages with at least the same care and deliberation as a letter or document has been traditionally prepared will be even more compelling than it is today.

Instant Messaging will likely create even greater risks of liability, loss and penalties to businesses when it becomes more widely used. Unlike email, there isn't a practical way to "slow down" this form of communication. Its spontaneity is what distinguishes Instant Messaging from even email. Statements by those who are extensively "IM-ing" claim it reduces inhibitions, allowing participants to say things they would not say in person or even on the phone. Although email may have similar traits, Instant Messaging takes them to another dimension. Such spontaneous and uninhibited communication may be a virtue for the timid shy conversationalist, but it's trouble for anyone that can be held accountable for statements they make.

It's not the likely permanence of emails and Instant Messages which is the most serious problem with these forms of communication. It's how they modify our reticence and deliberation in communications that we are only beginning to understand. These inhibitions, that keep us from making statements in traditional communications which are likely to be misunderstood and misinterpreted, have to be included in these newer communications as well. Until a business and its officers and employees understand these digital communications and when appropriate inhibitions become standard protocol, a strong policy of caution, or even abstinence for business use, is probably the safest course.

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