Emails: A Technological Convenience and a Legal Nemesis

Author: Stephen Hans

Prior to emails and texting when most communication was verbal, there was an element of he said or she said and no real definitive way to prove what anyone said except by witness testimony. And even witness testimony was often questionable or open to someone’s interpretation. However, in today’s technological world, documentation of communications abounds.

What this means within a business and legal context is that it is much easier to pin down violations and prove criminal acts through email and instant messaging records.

The ePolicy Institute  reported the following interesting facts based on a 2004 Email and Instant Messaging (IM) Survey conducted by the American Management Association and the ePolicy Institute:

*       21% of employee email is subpoenaed by courts and regulators

*       13% of companies have battled lawsuits triggered by employee e-mail

*       65% of companies lack e-mail retention policies

*       94% of companies failed to retain and archive instant messaging (IM)

*       46% of companies offer employees no email policy training

*       50% of workplace IM users send or receive in risky content including attachments, jokes, gossip, confidential information, and porn

You would think that businesses have become savvy about emails since this information became available in 2004. Yet, in March 2012, MSNBC reported that an email from the treasurer of MF Global to the CEO, former New Jersey Governor Jon Corzine, revealed criminal implications. The email stated that the treasurer transferred millions of dollars out of customer accounts to cover a shortfall per the CEO’s instructions. Emails are increasingly becoming evidence in today’s court cases.

Taking an objective view of email content before sending is a wise safeguard. Business managers, employers, and employees should ask themselves whether they would feel comfortable having their email content presented in a court of law.

Author: Hans & Associates, P.C.  Stephen Hans is an accomplished New York employment defense law attorney who has been practicing law in New York since 1977.

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