A piece of email that Microsoft recently called "a smoking gun" once again underscored the inherent risks that electronic communication carries in the corporate world. In spite of such high-profile cases, however, many companies continue to leave themselves vulnerable to charges based on digital messages.
In the Microsoft case, a simple missive sent to an employee in Netscape Communications' legal department eventually became front-page news, threatening to undo the appointment of its author as a court adviser in the antitrust battle raging between Microsoft and the Justice Department. That message, sent by visiting Harvard Law School professor Lawrence Lessig to Netscape public policy counsel Peter Harter, is by no means the first time a seemingly innocuous exchange has turned into a so-called smoking gun.
Other cases, such as one that went to trial last year in which Oracle chief executive Larry Ellison was accused of sex discrimination, suggest that email is being increasingly used in court battles. In fact, the practice dates back more than a decade to the Iran-Contra investigation, when prosecutors painstakingly traced electronic communication from Oliver North.
"Increasingly, I see entire cases built on email correspondence, in large part because people don't take it as seriously as written correspondence" says Russ Elmer, an employment attorney at Gray, Cary, Ware & Freidenrich.
Attorney David H. Kramer agrees. "In the litigation environment, it is often electronic mail that contains the most damning admissions," says Kramer, who specializes in Internet-related issues for Wilson, Sonsini, Goodrich & Rosati. He explains that "in email, people don't take the care they would were they writing formal correspondence, and they tend to say things they don't intend to say."
Nevertheless, litigation experts say, many corporations still haven't updated long-standing policies governing the storage and destruction of company documents to include email.
"We've found a lot of companies aren't thinking about this," says Troy Larson, a project manager at Computer Forensics, a company that gathers electronic evidence for parties engaged in litigation. He adds that many companies view email differently from written correspondence and don't take the same steps to weed out potentially damning electronic messages.
"It's our finding that people treat email in a more conversational way, [but] if it's a transient form of communication maybe they need to treat it as such."
For years, most large companies have maintained strict document retention guidelines that generally require that documents no longer needed for a specific purpose be destroyed. The policy is designed to anticipate future lawsuits, a vigilance that has become a way of life for many companies. Companies hope that by periodically discarding unnecessary documents, legal adversaries will be unable to get their hands on incriminating evidence.
So Larson and other attorneys are counseling clients to write strict policies about email and stick to them. "It's our advice usually not to retain documents electronically for very long, especially email. There's just no reason to do it," says Eric Goldman, an Internet attorney at Cooley Godward.
Adds Peter Detkin, vice president and assistant general counsel at Intel: "If you don't need it for business reasons, get rid of it."
But he and other attorneys point out that purging old email isn't always as easy as it seems. For one thing, information systems employees often store many backup copies of a network in several places. For another, copies of email may be stored on different Internet sites by other recipients.
Detkin says that any copy of an email can easily wind up being subpoenaed, making enforcement of any email policy difficult.
"These things have a life of their own, and even if I wanted to delete every instance of an email, I couldn't do that," he says. "We have 65,000 employees, and assuring that they all comply is a full-time job."