Departments — September/October 2005

A Path to Disaster: How E-mails Can Be Dangerous

Industry managers must pay close attention to the content of their e-mails and educate employees about what not to write and send

By Robert S. Peckar

Robert S. Peckar ATTORNEY AT LAW Robert S. Peckar is the founding partner of Peckar & Abramson PC, a national construction law firm with offices in New Jersey, New York, San Francisco, Los Angeles, Miami, Fort Lauderdale, Washington, D.C., and London. Website: www. pecklaw.com

As attorneys who read through thousands of e-mails in the context of pending lawsuits, we see the potentially dangerous, indiscriminate use of e-mail every day. Consider these four examples:

> "Bill, our guys are screwing up something terrible here. If we don't get them into first gear, this project is going to be delayed several months and we'll be at fault." -John
> "John, I know. I reported this up the line, but no one is paying attention. Everyone is busy working on marketing that big new stadium job, and I can't get their attention. I'll try again and let you know." -Bill

> "Jane, these financial reporting records are wrong! Someone in the field must be putting costs into the wrong categories. Do you think the project staff is covering up something?" -Dave
> "Dave, I'm afraid I have the same concerns. This project was bid pretty tight and the project super has been complaining from the get-go that he can't make the numbers on carpentry and concrete. My guess? He's spreading the costs around to make it look like he overcame the problem. I'll try to dig deeper." -Jane

> "Warren, I've about had it with this damned electrical sub. I can't get him to produce, no matter what. We probably should default him right now, but I want him to put another million in work-in-place, then we can default him and not pay him any more money. That will leave us with a pot to try to get his work done (maybe even leave some for us!). If that doesn't work, we can always look to his surety, right?' -Jay
> "Jay, delete your e-mail immediately. This is not the kind of thing we should be talking about in e-mail. This could prove that we are plotting to screw this guy's surety, and our lawyers wouldn't be too happy with that. Get rid of this now. Talk to you later." -Warren.

> "Dwight, did you hear about Gwen? Heard she had quite a fight with Doug [her boss] this a.m. Called him an 'a-hole' and accused him of lying about her performance to the higher-ups. Everyone knows she's a jerk and only has the job because she's a female-Doug told me so himself. She looks good in a hard hat though, don't she?" -Tony
> "Tony, those jeans look pretty good too-nice sweater last week. Hope she stays on. At least she's better looking than you!" -Dwight

These are, of course, just "teaching examples" of dangerous e-mails, but typical of what we find in the e-mail records of many companies.

The first exchange could be very damaging in a trial about the contractor's performance. What if Bill is wrong? What if people are listening up the line and, later, some changes correct the problem, but no one writes an e-mail confirming that? Will the jury believe the message: "No one is paying any attention up the line," or will they believe the trial testimony of the project executive who says he really was paying attention and his subordinate was simply wrong in the e-mail?

In the second exchange, the contractor's attempt to prove his economic damages is going to be in real jeopardy, thanks to these e-mails. The third exchange shows that at least one person knew it was not wise to express such views in an e-mail. However, his sentiment is too little too late. Deletion of the e-mail exchange will not make it go away from the computer hard-drive and back-up systems, so it will be found, and then the mere fact that it was deleted will deepen its damage.

The fourth exchange actually sets up the perfect sex discrimination case for Gwen and will probably cost the company or its insurer a ton of money. But what if this exchange is just a "testosterone duel" between two male chauvinists outside the mainstream of the company's culture and whose expressions have created the opposite impression-at least in writing?

Writing or Talking?

The four imaginary e-mails above raise some important questions: Is an e-mail a letter, a memo or a conversation? Do people really discern any difference between "writing" and "talking" in an e-mail? Often, it is the alluring simplicity of "talking" in e-mail that catches the unwary. The careless and foolish language used in e-mails suggests that the boundary between the written and spoken word is lost in the process of e-mail communication. That's why an intelligent person who would never write that letter to the electrical subcontractor in the third example above-or even file it as a memo-says, "we are plotting to screw this guy's surety…."

Yet we see examples of that kind of communication every day in e-mails and, if you will think about it, so do you. Perhaps more frightening is the lack of understanding in the business world about how easily people's e-mail-recorded thoughts, uninformed concepts and emotions can be used against them and their company in litigation.

Confidentiality

So let's start with a basic concept: There is no such thing as a confidential e-mail. While an e-mail between a lawyer and client is probably privileged and protected from scrutiny, a prudent person must assume that all other e-mails and their attachments can be examined by anyone with a legal right to do so. That could include e-mails in an inbox or outbox, sent files, deleted e-mails and those placed anywhere else.

E-mail options can also create problems. The indiscriminate use of "Reply to All" has resulted in plenty of embarrassing moments when someone in the trail of recipients mistakenly gets to read about themselves, starting a chain of events that can be calamitous. However, as bad as that experience can be, it must be understood that each e-mail recipient's inbox becomes another place where e-mails may be found, read and used against them by lawyers for a party involved in a lawsuit or even by government investigators.

Precautions

Many companies already have in place a monitoring program that identifies staff members who violate the company's e-mail policies. Of course, such policies will cause many to recoil at the suggestion of "invading" employees' e-mail records. But, however unpleasant the concept, there is no other way to police employee adherence to these rules and no better way to assure that employees take these rules seriously.

Would the "loose-cannon" employee be more likely to avoid dangerous e-mails if he or she knew that there was someone checking company e-mail records? We think so, and most employers have the legal right to review those e-mails records without requesting permission from the employee.

Every company should have a protocol for the retention and destruction of e-mail records. The courts take a dim view of companies that destroy e-mail records they ought to maintain as evidence. This can result in the company paying the costs of having experts invade the company's information technology systems to rebuild lost records. It may also result in the entry of judgment, sanctions or the awarding of attorneys' fees. Numerous courts have shown a willingness to issue harsh punishment for the negligent destruction of data.