E-Mail, the Workplace and the Electronic Paper Trail

Ever wonder whether your boss can see what you write in your work e-mails? Companies large and small are monitoring employee e-mail, looking for everything from proprietary data leaks to cyberslacking. Here, some suggestions on how to e-mail without worry.

Computer
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E-mail and other electronic communications have dramatically changed the contemporary legal landscape. By some estimates, more than 90 percent of the cost of a lawsuit today can come from sorting through e-mails and other electronic documents to determine which ones are relevant to the case.

Ken Withers, director of judicial education at a legal think tank called The Sedona Conference, says that 20 years ago, a case that involved 300,000 pieces of paper was considered huge.

"That's considered a drop in the bucket today," Withers says. "The equivalent of 30 million or 300 million pieces of paper, if these were printed out, would not be unusual."

The need to sort through those piles of documents has had a significant impact on the lives of recent law school graduates.

"Today a young person graduating from law school and joining a large firm in one of our major cities can look forward to perhaps three or four years of doing nothing but sitting in front of a computer screen reviewing e-mail and other electronic documents for litigation," Withers says.

Although the quantity of documents is daunting, an electronic paper trail does carry an advantage. E-mails are much more searchable than paper documents. In fact, some companies now have proactive filters that can catch troublesome e-mails before anyone files a lawsuit.

For example, financial firms might look for the word "guarantee" — as in "guarantee a return," says Cyndy Launchbaugh, who works for ARMA International, a nonprofit records management group.

Companies often can't uphold such a statement, she says, so if the word, "guarantee" pops up in a company e-mail, the firm might check to make sure employees aren't promising something they can't deliver.

Sorting Through Documents

But many companies are not that organized. ARMA co-sponsored a study last year that found that one in four American companies does not have a system for organizing electronic documents. Such a system might tell companies what they should keep, what they can get rid of, and how to archive documents if they need to retrieve material in a lawsuit.

If a business without a system for organizing its electronic records gets sued, it can cost a fortune.

"It can get into the millions," says Dave McDermott, records manager for J.R. Simplot, an agribusiness company.

Simplot does have a comprehensive records management policy, but the company only created that policy because roughly 40 years ago, federal investigators came asking for documents. At the time, McDermott says, "our records were stored in horse barns."

McDermott suspects many companies only get on the electronic records management bandwagon after they've been sued once.

Today a massive company the size of Simplot may juggle 300 or 400 court cases at a time. Each case requires its own set of documents that has to be retrieved and sorted. The industry calls it "production."

When a company that does not manage its e-mail gets sued, McDermott says, "many cases are settled, because the cost of production outweighs the cost of settling."

In other words, when a company has to choose between spending millions of dollars on sorting e-mail and spending a few hundred thousand to settle a case, they may just pay the plaintiff to make the lawsuit go away.

After that, the company's next step may well be to establish a comprehensive electronic document management policy.

E-Mail at Work: Tips to Keep You Out of Trouble

Ever wonder whether your boss is looking over your shoulder as you write e-mails from work? You're not being paranoid. Companies large and small have turned to monitoring employee e-mail, looking for everything from proprietary data leaks to cyberslacking.

E-mail creates the electronic equivalent of DNA evidence, according to the ePolicy Institute, which conducted, along with the American Management Association, surveys of e-mail monitoring among U.S companies. That means your electronic paper trail can be restored and reviewed — and can also be retrieved as part of a future lawsuit's discovery process.

Here are some suggestions on how to e-mail without worry.

Expect Zero Privacy. Employers are increasingly monitoring staff e-mails, instant messages and Internet usage. According to a 2007 American Management Association survey of 304 U.S. companies, 43 percent of employers store and review employees' e-mail messages. Nearly 30 percent of them have fired workers for e-mail misuse — for violating company policy, for using inappropriate or offensive language, for excessive personal use, and for breach of confidentiality. So unless your company states otherwise, assume your employer is monitoring your workplace communications, including e-mails and IMs, according to Sharon Nelson, head of Sensei Enterprises, a computer forensics and data recovery company in Fairfax, Va. Nelson suggests that before you hit send, conduct this three-part test: imagine your e-mail in a major newspaper, imagine your mom reading it and imagine it winding up on a billboard along the highway. "If it passes these tests, then it's fine," Nelson says.

How Do They Do It? Computer monitoring takes several forms. Most employers use software to automatically monitor e-mail, but many hire staff to read and review chunks of random e-mail, the survey found. Time stamps allow employers to gauge time spent on personal e-mail. And if you're afraid your boss may have it out for you, be careful: she could be monitoring your e-mail for when you slip up. So avoid using obscene, pornographic, sexual, harassing, discriminatory, defamatory, menacing or threatening language — anything that could make you a liability in your employer's eyes.

Will I know? Not generally. Two states — Connecticut and Delaware — require that employers notify employees when they're being monitored. And while an alert at log-in is a best practice for all companies, monitoring e-mail is generally unregulated. Besides, Nelson says, it's a universal given that the computer you work on is your employer's equipment. That has been "tested in the courts over and over again. It's their equipment. It's their right" to monitor. As head of Sensei, she says "I even assume I'm monitored" by Sensei's vice president of technology.

G-Mail Is No Refuge. Employers can still recover and read Internet-based e-mail like Yahoo! Mail or Hotmail when it's opened from a work-based computer. That's because the e-mail is saved to your local, company-owned hard drive. For this reason, personal e-mail from your attorney opened on your company's computer may result in waiving the attorney-client privilege.

But I Hit Delete! Computer forensics firms like Sensei can recover work e-mails that you thought you deleted. Over time, e-mail is overwritten from your work's server, but don't expect to know whether it's an e-mail from five days ago or five years ago, Nelson says. She recalls a case involving three stockbrokers who claimed they did not leave with the company database when they separated from their employer.Their e-mail logs indeed said the information had been deleted just before they left, but there was also evidence that their Palm Pilots had been synced up to their computers and, sure enough, forensics discovered the database on their handheld devices.

Disclaimers Aren't Worth a Darn. Most experts agree the sometimes ridiculously long disclaimers at the bottom of e-mails are worthless, Nelson says. "They're rote. Nobody's reading them." However, she adds, a lawyer may tell you to include them on your e-mails anyway.

Avoid the AutoComplete. One of the most frequent e-mail blunders is the AutoComplete function featured in programs such as Microsoft Outlook. AutoComplete predicts the e-mail address as you type, and if you're not careful, your message could wind up in a very different inbox than the one you intended. Case in point: the New York Times broke a story early this year that Eli Lilly and Co. was in settlement talks with the government after a lawyer associated with the company accidentally e-mailed confidential information to a Times reporter instead of to her colleague with a similar name. Either double-check that your e-mail's recipient is who you intend, or try disabling your AutoComplete function.

Watch out for copyrighted material. You wouldn't make photocopies of a chapter of a book and distribute them, would you? Same goes for electronic publications. So watch out before you send your co-workers and friends a magazine article that your company subscribes to. Say, for example, your company of a few hundred has only a handful of subscriptions to a magazine, but an article is distributed companywide. The publisher is losing out on all that subscription revenue, and your company could be liable. And if the publisher sued, your forwarded e-mails would be discoverable (and your company may be scanning your e-mail to head off potential copyright infringement lawsuits). Kim Jessum, an intellectual property attorney with Stradley Ronon in Philadelphia, suggests that before forwarding articles, find out what's permissible under the contract with the publisher: Your contract may allow for printing rights, which means you can make a printout copy of the article available to staff.

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