Perspective: Getting nailed by e-mail

When are people going to learn? Many folks act as if e-mail is akin to a verbal conversation that comes and goes in the wind. Yet e-mail has a degree of permanence that hardly ever dies.

Recent history is crammed with examples of e-mails that later became the bane of their authors' existence. Once revealed, a poorly worded e-mail or an e-mail that should not have been sent in the first place can cause much embarrassment. That's the best-case scenario. The worst-case scenario? Try civil liability and even criminal prosecution.

Writers of e-mail messages become very comfortable and chatty, forgetting or not appreciating that the e-mail messages live on.

Old e-mails have come back to haunt captains of industry and high-level government officials alike. For example, Justice Department lawyers confronted Microsoft Chairman Bill Gates with his own e-mails during the government's antitrust case against the company in the late 1990s. Attorneys for the DOJ skillfully used Gates' own e-mails against him to paint Microsoft's co-founder as a predatory monopolist.

More recently, David Safavian, a senior official for the General Services Administration who had been in charge of federal procurement policy, was arrested and charged with obstructing the government's investigation of lobbyist Jack Abramoff. The Justice Department just declared in federal court that it intends to establish Safavian's guilt by relying on his own e-mails. These e-mails supposedly will show that Safavian had been assisting Abramoff with respect to federally managed land deals and that he hid such involvement.

How does this happen, even to high-powered executives and officials who should know better?

E-mail has become ubiquitous. Very busy people often send and receive e-mail messages more than they actually talk to others. E-mail thus becomes a substitute for conversation. Writers of e-mail messages become very comfortable and chatty, forgetting or not appreciating that the e-mail messages live on.

It is not enough to simply delete an e-mail. The message still might remain in the e-mail box of the message recipient or other places on the "live" system. Even if e-mails get wiped off of the live system, they are often captured for saving on backup tapes before being deleted from the live system. Thus, while an e-mail might appear to be "gone," it is very much recoverable.

Restoration and recovery of e-mails from backup tapes can be quite burdensome and expensive, and many times is not warranted. Simply put, the potential value of seeking to retrieve e-mails from backup tapes is outweighed by the cost and disruption caused by the effort.

If you want to be absolutely safe, do not put anything in an e-mail message that you would not want to see on the front page of the newspaper. Otherwise the e-mail you write today could very well come back to bite you tomorrow.

Biography
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to [e-mail] with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

More Perspectives

[MrNougat]

The subtext of TFA

So what I'm seeing is that if you're going to pull a stunt that goes right up to the line of legality and ethics, and possibly crosses it, don't use email.

Come on. If you're doing business, you should have no qualms about using email - because everything you do is ethical and legal, right?

[Trane Francks]

Not just legality, stupidity

A coworker of mine got fired several years ago. She had a thing for the president of the company and she fired off a missive to one of her friends in reply to a "dumb" message from the prez ... except that she forgot to re-address the reply and it went straight back to the prez.

It's not just about doing something wrong or illegal, it can simply be about saying something that you'll wind up regretting later. It happens all the time.