Careless email lands firms in trouble

Beware your email doesn't come back to haunt you. The immediacy of email is a double-edged sword. You can fire off your thoughts to anyone in minutes, but if they fall into the wrong hands they can be used against you. Even if the email doesn't come to the attention of another party, a company may be required to present email to a court under discovery.

Beware your email doesn't come back to haunt you.

The immediacy of email is a double-edged sword. You can fire off your thoughts to anyone in minutes, but if they fall into the wrong hands they can be used against you. Even if the email doesn't come to the attention of another party, a company may be required to present email to a court under discovery. Discovery is where the prosecution and defence teams make documents available to each other.

The US Justice Department (DOJ) and a group of state attorneys general are out to prove Microsoft used illegal tactics to ensure the commercial success of its products, and the DOJ is relying in part on internal Microsoft email.

Email culture allows for quick and thorough response to issues but it also creates an easy-to-track communication "audit trail".

Though some human resources departments have expressed their concerns about inappropriate humour and personal references in email, few companies have prepared for the legal exposure that this communications medium provides.

An Auckland company was recently caught out when an internal email to its sales team ended up in the hands of a competitor who threatened legal action based on remarks in the email. The matter didn't go to court but it prompted the company to implement an "acceptable use policy" on email, fax and phone calls.

Wellington-based A J Park and Son lawyer Andrew Christie says all companies should have such a policy, and it should include instructions that employees shouldn't say anything in an email which might create liability for them or the company. "It's so easy to be careless."

He says emails which people think have been deleted can come out as part of the "discovery" process.

"There are organisations in the US which work with lawyers to pull apart the guts of computers and look for all these messages and other documents."

He says he is unaware of any cases in New Zealand where email documents have been accessed as part of discovery, but says there have been cases in the US.

When Los Angeles Police Department officers were accused of beating Rodney King, one police officer sent a message on the LAPD system saying: "Oops, I haven't beaten anyone so bad in a long time."

Says Christie: "I'm sure he didn't think that was going to come back to haunt him, but when they did their discovery it turned up."

He says another case in the US involved the sale of faulty technology.

The other side came back and claimed damages and, going through email, discovered the employees knew the technology didn't work and that they were selling "a lemon".

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