E-mail and the courts, Part II Featured

5:41am EDT September 21, 2006
E-mail, unheard-of in the business world before the mid-’90s, is now its leading method of communication.

Along with e-mail’s benefits, however, come increasing risks and responsibilities — all focused on the actions of employees who create, send, forward or save electronic communications. For this reason, business concerns should establish a strict set of standards for all employees. Failure to adhere to those legal policies places both the company and the individual at risk for legal or financial liabilities — not to mention potential public embarrassment.

“This area of law is in its infancy,” says Dan Albers, a partner in the Intellectual Property and Litigation departments at Barnes & Thornburg LLP. “The law is evolving because there’s not a lot of precedence.”

Smart Business asked Dan Albers about privileged correspondence and the admissibility of e-mails in court.

Legally, what is the purpose of labeling e-mails like ‘Attorney-Client Privileged,’ ‘Not Public Data’ and ‘Trade Secret’?

If you label an e-mail, it at least allows you to show the court your intent at the time, so you’ll have more of an argument. It’s also easier to find those e-mails and try to protect them when they’ve been labeled for purposes of litigation.

It’s very important that ‘Attorney-Client Privileged’ communications be labeled and be maintained in a privileged way — meaning that people not responsible for legal decision-making do not receive those e-mails.

‘Not Public Data’ or ‘Trade Secret’ e-mails contain proprietary information. Most courts have said that, in order for something to be treated as proprietary (a trade secret) the company must have taken reasonable measures to protect it from public dissemination. One of the ways you do that is to have instructions that certain kinds of information will always be labeled, and the dissemination list would always be limited to those people who would be involved in using that information for a business purpose.

The absence of both these labels can also have the opposite effect. Opposing counsel might ask how the originator expected an e-mail to be treated in a confidential manner if it wasn’t properly labeled.

What is the value of maintaining e-files in their original form?
If you’re going to use them in any substantive way in litigation, you need to maintain them in their original form to get them into evidence. Just like any other document, you need to show the original or a copy that has not been changed in order to have a basic foundation for getting it into evidence. If you cannot make that showing, there may be an inference drawn against you that you’re liable.

What can corporations do to help prevent being taken to court for abuse or misuse of electronic-based communications?
The most important thing is to have a corporate policy in place and have it incorporated into your employee manual.

The company should have access to all e-mail and electronic communications for company purposes at any time.

Whenever the company believes that it is likely to be involved in litigation, there must be some form of memorandum to the appropriate people to maintain electronic files.

The most important thing is to not destroy what would or could be relevant electronic discovery. If it’s destroyed, any favorable information will be unavailable. And you would much rather be able to respond to the substance of an e-mail, because it’s almost impossible to disprove any inference that an e-mail was destroyed for no reason.

Finally, employees should not publish in e-mails their conclusions about relationships with other companies, or potential litigation such as patent infringement, copyright infringement or legal liability. Crafty lawyers will get those e-mails into evidence, and their effects will be almost impossible to overcome.

Is copyright protection an important legal issue when it comes to electronic communications?
It depends on what material is being used and what it’s being used for. If you want to cite particular portions of copyrighted material that you think are relevant — with the source — that’s probably fair use and not a copyright violation.

But when a person takes copyrighted material — for example an article or product brochure — and sends it out across an entire business for the uses of carrying on the business, that could be a violation. Because it’s not being transmitted publicly, though, the question is, how is the copyright owner going to know it happened?

Copyright protection should be on the alert list for people who are responsible for use of internal Web sites, and they should discourage full use of copyrighted materials.

DAN ALBERS is a partner in the Intellectual Property and Litigation departments at Barnes & Thornburg LLP. Reach him at (312) 214-8311 or dalbers@btlaw.com.