Misdirected email; record retention, Selling your business and TS Eliot

Posted on June 22, 2009 by Dave Broadwin

This is a theme to which I keep returning – email (and other electronic records) is forever. At this point everyone has a horror story about the email that got sent to the wrong person or that had some embarrassing statement. The observation that email seems to inspire people with a freedom to say – whatever, has been made so many times that it can’t possibly bear repeating, can it? Well, despite the well know phenomena of misdirected email, embarrassing statements and etc., all these email faux pas seem to continue unabated.

Mostly it is just a nuisance when you send an email to the wrong person, and you get an email back the gist of which is "I don’t think this was intended for me." But, we recently had to deal with a situation in which a consulting firm that was doing work for two companies in related but potentially competitive businesses sent proprietary marketing information of one to the other. This was an autofill mistake. In the end, it turned out OK, and it almost always does, but … It seems like these types of errors are just part of life. I know one person who has turned off the autofill feature and another who dictates his emails and tells his assistant who to send them to. I can imagine a software product that guesses whether the autofill has what you intended based upon some comparison of content and other persons copied on the email. But, that probably would just further lull people into a false sense of security.

Record retention is another one. The government is hot on the trail of all sorts of regulation around record retention and data protection.. Our firm publishes a blog on that topic as well. I recently ran across two situations in which employers purport to delete old email records after a few weeks. I don’t know what the law requires or what our data protection group would advise, but deletion has at least these two consequences. First, when you need to do some investigation you don’t have all the data. That is, if you think something bad has happened and you erased the emails you may have trouble proving stuff. Second, it may turn out that someone else has preserved the record. Now, you may be able to get it through some legal process such as discovery, but that is a pain and takes time. You may find yourself disadvantaged by this delay (or you may be unable to get the emails for some reason.)

Keep in mind that when you sell the business, the buyer will own the company’s serves etc. If you have been using the business email etc. for personal stuff, they buyer will have easy access. Maybe you don’t care, but maybe you do.

T.S. Eliot said about literary criticism "the only method is to be very intelligent." With respect to this whole area of email, records etc., the only method is to be very careful.
Tags: , , ,

Email and Document Retention

Posted on January 27, 2009 by Dave Broadwin

A friend suggested that I comment on a post Confessions of a Pack Rat (aka My Document Retention Policy).  Which I did, but then thought to recreate the comment as a post here because, retention (at least of emails) is a theme I come back to from time to time on my blog. 

So, here goes: like diamonds, email (and all electronic copies of documents, letters, etc.) are forever. Unlike diamonds, everyone can afford to have them and keep them – and everyone does. If you really delete an email or an old draft of something, guess who will have it for sure: the guy suing you (or defending your suit). 

We had a case in our office in which our client got a multimillion dollar settlement from a fortune 100 company in part because our client kept everything electronic and the defendant had a “retention” policy that, in those days, caused them to delete old email. The defendant made assertions in various legal filings based on the statements of their employees, which turned out to be completely false when the old emails were produced (by my client). Defendant’s credibility was, of course, completely undermined.

See also my posting Email is Forever for a similar story about instant messaging.

Having said that, not everything is electronic. Careful attorneys often purge their paper files after a transaction for a variety of reasons. One reason is that saving all those forests of paper is expensive (Iron Mountain loves it, of course). Another reason is the one that several comments pointed to: in a litigation, some very bright graduate of some elite law school will doubtless be looking for the worst possible interpretation of everything. 

A story that I heard some time ago involves Larry Sonsini, one of the name partners in the venerable Silicon Valley law firm of Wilson, Sonsini, Goodrich & Rosati. As the story went, he was being deposed in connection with a securities fraud case. Plaintiff’s counsel pointed to a draft document that had the letters “BS” written in Mr. Sonsini’s handwriting in the margin and asked pointedly what that could possibly have meant. Sonsini, is said to have paused, looked at the document, and responded, “Bob Short to review.”

Having said all this, I keep everything, including my handwritten notes. For better or worse, I need these things (including my notes) to remember accurately decisions, analysis and facts. Like Fred Wilson (author of Confessions of a Pack Rat), I have been deposed, been a witness and had to produce documents (including my handwritten notes). I have never regretted it, and in two cases, my handwritten notes (made contemporaneously with events then long gone) proved critical to my client’s case.

Back to email for a moment, emails seem to be a place where people will write all sorts of things that they would never say or write in a more formal letter. Be careful what you write and to whom you send it.  Also be aware that whatever you send can be forwarded with ease (or with negligence). Finally, be aware of blind copies. You do not know who is getting the same email you just received.

Tags: ,

Email is Forever

Posted on January 9, 2009 by Dave Broadwin

One theme that comes up from time to time in the press and in the practice of law (everyone has a horror story about it) is the errant email (the one you wish you had not sent).  To state the obvious, people have a tendency to put things in emails that they would never write in another context.  Mostly when you do this, the only bad thing that happens is modest embarrasment.  However, some emails have led to major problems for the sender becasue they can, and will, be used against you, and you can't, as a general propostion, get them  back. 

A few things to note, the company server belongs to the company and the emails that reside therein can be accessed by the company if it wants to.   Another obvious source of problems is the autofill feature for email addresses.  If you are sending anything sensitive, look twice.  Similarly, the "reply all" button.  Finally, our firm had a case that turned, in part, on instant messaging.  The sender assumed, incorrectly, that instant messages are not saved anywhere, but the recipient of the relevant message had turned on the save function.  In that case, the sender's testimony was exposed as perjury.

Usually the story of errant email has a bad ending, but here is one where the tables appear to have turned.  According to TechCrunch,  "Tapulus CEO Bart Decrem sent out an email to investors yesterday updating them on the status of the iPhone/Android focused company. It was forwarded to us, and we reprint it ..."  However, one of the comments to this blog post, notes, "The leaked email almost looks like a press release. Not sure if the title of the blog justifies the post !"

So, while this post demonstrates that there can be strategic uses for the errant email, it is the exception that proves the rule. 

Tags: ,