The Perils of Email

The Perils of E-Mail

1. INTRODUCTION

A 1998 survey conducted by Forester Research, Inc. estimated that 98% of all companies with more than 1,000 employees have Internet access and 45% of businesses with under 100 employees are on-line (Norman 32). According to International Data Corporation, at the end of 1998, 90 million U.S. workers were sending 1.1 billion business e-mail messages per day. In the year 2000, that same firm projects that 130 million workers will inundate recipients with 2.8 billion e-mail messages each day (Hawkins 24). The advantages of using e-mail are obvious. E-mail is often a better and more efficient means of communication because it's easy to use and saves time and money. E-mail has become a necessary tool for conducting business and has even facilitated the growth of telecommuting by employees. For these reasons, in recent years, advances in electronic processing have been introduced into companies with little thought as to the potential risks associated with them. While certainly there have been tremendous advances in communication and information sharing, the enormous increase in electronic communications can create great potential liability. As e-mail has become more widespread and an important component of daily business communications, a host of issues and concerns related to the use and storage of electronic communications are raised.

2. PROBLEMS

A multitude of new problems and concerns for employers are created by the emergence of e-mail as the dominant form of business communications. Although e-mail is quick and easy, it is much more like a conversation than like writing. A typical e-mail does not involve the same amount of care and thought given to a formal memo or letter. People simply tend to type and hit "send" before expending much thought. This tendency to exercise less caution results in "complaints, gossips, rumors and angry viewpoints [that] frequently appear in corporate e-mails and these seemingly innocuous messages have cost companies millions of dollars in verdicts, judgments and bad settlements." (Schweich 108) In fact, e-mail documents have grown to appear as key pieces of evidence in legal proceedings.

Also, the sending of e-mail has become an easy way out instead of having interpersonal communications. When direct contact seems to be uncomfortable, people often resort to e-mail. However, e-mail lacks the personal tone of a phone conversation and the body language exchanged in a personal meeting. Without such cues, e-mails are very likely to be misconstrued and can create an emotionally charged situation.

In addition, e-mail is another form of writing and as such, creates a "paper trail." But, unlike a traditional paper document, electronic documents such as e-mails contain much more revealing information, such as, who created the file and when, as well as a record of all modifications and deletions. Even when e-mail messages are marked deleted, they remain in the computer until the occupied disk space is overwritten. Messages also remain on the e-mail server until deleted. Because of the incredible amount of information that resides on computers and the widespread use of e-mail, electronic evidence is now a key weapon used in litigation (Jessen 26).

E-mail now creates a large amount of potentially discoverable information in lawsuits. It is now common for one party to request the production of e-mails in legal proceedings. Attorneys regard e-mail as a good source of "smoking guns" because of the informal nature of these messages and because they often contain damaging statements that would rarely appear in formal correspondence. In Microsoft's antitrust case, Bill Gates' incriminating e-mail messages raised serious questions regarding his credibility and had an adverse impact on Microsoft's case. In addition, the volume of stored messages substantially increases litigation costs. A company must sort through massive quantities of e-mail to comply with legal disclosure obligations. In fact, the number of computer consultants who specialize in the retrieval of electronic documents has grown rapidly. The cost of producing such electronic information can become astronomical since the problem is two-fold. One, most companies retain far too much electronic information. Two, most companies are unprepared to properly and efficiently produce required data. These cost factors may prompt a company to pay a substantial amount to settle a case in order to avoid the high costs and risks associated with producing such data (Jessen 27).

E-mail such as off-color jokes can be cited in cases claiming sexual harassment or discrimination. But, if an employer goes too far