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Risk of the Errant Email
By Scott E. Blakeley, Esq.

It is estimated that businesses generate 13 billion e-mails a day. E-mails leave a trail on hard drives, servers and backup tapes, and you never know who might have been blind copied. The Sarbanes Oxley Act (SOA) makes destroying or attempting to destroy documents related to a federal investigation a crime punishable by up to 20 years in jail. Destroying evidence in anticipation of a lawsuit can lead a jury to the conclusion that the information would have been damning. To combat the risk of errant employee e-mails, some software companies offer software that screens thousands of e-mails a day. The software stands sifts through employee e-mails and attachments for words are banned. Infected e-mails with banned words are quarantined, blocked or rerouted to the company. Other programs use security encryption codes. A program called Omniva allows someone to prevent recipients from copying or printing a confidential note. Omniva can paste a transparent image over the e-mail's code. If someone tries to copy or print the message, a blank page comes out instead.

E-mail in the business: who owns it?

A former employee sent several waves of e-mails critical of the company to thousands of the company's employees. A ruling in the California case is now on appeal which says the former employee was trespassing on the company's e-mail system. The battle, which pits private property rights against free speech, will help determine whether the Internet is a public forum regardless of the ownership of the servers and computers. The former employee's case breaks new ground because his messages expressed personal views, which the 1st Amendment generally prevents the government from censoring.

Voicemail: the latest front in e-discovery wars

The widespread use of B2B e-mail requires the revamping of document retention policies and resources to ensure that the volume of electronic communication is protected. This may require a separate document retention policy for the credit department. The problem may soon get worse with a similar explosion in the use of voicemail and its most recent developments: digitized voicemail and the technology that may make it as permanent and accessible as e-mail.

The focus of voicemail records is on the recipient of the message. It is usually the recipient's voicemail account that will contain a record of a message. To preserve voicemail records effectively, recipients must be identified. Recipients of relevant messages, however, may be a much larger group that the senders of such messages. Thus, to preserve potentially relevant messages a business may be required to cast a wider net. Unlike e-mail, voicemail does not generally have built-in search capabilities. Production of voicemail messages in discovery may be complicated by the fact that the sounds of the actual messages may be critical to understanding what was being conveyed. A mere transcript of a message does not capture tone. The sound of an oral message can make a case.

Technology may allow for the creation of digitized voicemail packets, which can be attached to e-mail, and distributed. The development of voice recognition and auto-transcription technology, moreover, may add to the value of such records. The increasing storage capacity of voicemail systems may soon make it possible to retain all voicemail records, just as it is now possible for most businesses to retain all e-mail records.

Reprinted with permission from the Trade Vendor Monthly, 1/03

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