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There’s still no way to make an e-mail completely disappear, but San Francisco-based Disappearing Inc. can do the next best thing. The 2-year-old company helps cautious e-mailers send messages so encrypted they become indecipherable to even the most powerful computer forensics technology. On its face, the technology may be a boon to corporate counsel everywhere but yet another headache for plaintiffs’ lawyers trying to build a case. “There are two effects of it, and they’re both unpredictable,” says Emmett Stanton, a litigation partner at Palo Alto, Calif.’s Fenwick & West. “You don’t know if the information in the e-mail is helpful or harmful.” The company’s technology makes expired e-mails “more unreadable than paper shredded and in a landfill,” says Dave Marvit, the company’s founder. “It’s gone, it’s completely gone.” Kris Haworth, a manager at Deloitte & Touche’s forensics investigative services group in San Francisco, agrees. And her team has some of the most powerful high-tech investigative tools in the country. “[T]he methodology is such that the forensics world can’t recover e-mail deleted in this fashion,” she said in an e-mail. The company’s cutting-edge encryption technology may prove to be a boon to companies that think any evidence is bad evidence. But the pros and cons to disappeared e-mail aren’t so simple. On the upside for corporations, Disappearing Inc.’s technology is essentially a pre-emptive strike against discovery motions for e-mail. Corporations that use Disappearing Inc.’s technology to encrypt all their e-mail as policy don’t have to worry about motions requiring them to dig through millions of e-mails to find the ones that may be relevant to a case. Because even though the e-mail messages are still on the company’s hard drives, they’re encrypted beyond recovery. Essentially, there is nothing to discover. It works like this: When someone sends an e-mail using Disappearing Inc. two signals go out — one is the e-mail to the intended recipient and the other is to Disappearing Inc.’s servers. The recipient gets an attached message made up of so much code, and Disappearing Inc. gets a signal to match a “key” to its servers to unlock the message. When the recipient opens the message, the e-mail program shoots a signal to Disappearing Inc., which then deciphers the code into an essentially normal, readable e-mail format. The system never actually deletes the incoming or outgoing record of the e-mail or the attachment that holds the e-mail on the hard drive. But without the key, the message is completely unreadable. They “key” is where all the disappearing happens. A sender can set a key to expire in anywhere from one to 90 days, and an expired key cannot be recreated. “However, if a client is using the service and litigation is pending, Disappearing Inc. can be served and required to hold on to the ‘key’ that will allow us to recover the e-mail,” said Haworth. Even on the corporate side, there’s a potential for Disappearing Inc.’s technology to come back and bite its users, Stanton says. Say a company is sued for negotiating a contract in bad faith. Any e-mails that prove the company acted properly are beyond recovery. “None of these things are panaceas,” Stanton says. “There are problems they can address and there are problems they can create.”

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