Wherever there is e-mail, the potential for trouble exists, and with the proliferation of handheld digital devices, e-mail is everywhere. Employees today e-mail as if they were speaking on the telephone or chatting by the watercooler, and they e-mail things that they would never include in a traditional business letter or interoffice memorandum. Yet e-mail has a permanency and an ease and breadth of distribution that exceeds that of traditional paper communications. These factors combine to make e-mail one of the first targets of opposing counsel, and their discovery requests and subpoenas invariably reflect this fact.
Amazing as it may seem, some companies’ employees still behave as if their e-mails were just between them and their correspondents. Here are some examples of why your employees need to think before they type. This past May, a high-profile case provided a dramatic example of how seemingly innocuous and/or confidential e-mails can be used in litigation with devastating consequences. Former hedge fund titan Arthur Samberg had to pay nearly $28 million to settle insider trading allegations. The case was going nowhere for several years when, in an unlikely twist, the divorce of a former Microsoft Corporation employee gave the Securities and Exchange Commission the break it needed. The employee’s soon-to-be ex-wife uncovered e-mails from their home computer that proved to be the critical link the SEC needed for a successful investigation.
