E-mail and the courts, Part I Featured

10:22am EDT August 29, 2006
You want to talk about a legal can of worms? Here are two words you might not expect: corporate e-mail.

“The legal liability involved in electronic communication is a massive issue,” says attorney Dan Albers, a partner in the Intellectual Property and Litigation departments at Barnes & Thornburg LLP.

“Electronic communication tends to be more informal than written letters. Before the electronic age, you sat down, dictated a letter, edited it, really thought about it, and then sent it. Now, in the age of instant communication, people write things they don’t mean.”

E-mail is now the most common form of business communication. Smart Business asked Albers about some of the legal problems with all those e-mail messages flying through cyberspace. Next month, we ask about libel, copyright infringement and maintaining trade secrets.

What potential legal issues are involved with electronic communications like e-mail messages?
One substantive issue is defamation, like libel or slander, depending on who the message is published to. Another is dissemination of private facts. Another relates to privacy concerns. Those are issues that need to be addressed from time to time by companies of any size.

Other issues can deal with how you keep and what you do with electronic communications for the purpose of ongoing litigation. If you think you’ll be involved in litigation or it’s likely that you’ll be involved in litigation about a particular topic, you need to save electronic communications.

An example is the antitrust case involving Microsoft. Its own e-mails relating to antitrust issues were called into evidence. Ultimately, the company was hung out to dry based on a series of e-mails from its top executive officers — including Bill Gates. The officers made comments about pricing and what they were going to do to their competitors.

Then there was the Sunbeam case in Florida where the company had not maintained its electronic communications even though officers knew there was going to be litigation. The judge directed the jury to find liability. There was a $500 million verdict and then a $1.5 billion punitive award, in part because the company had not kept its electronic discovery and the jury was drawing adverse inferences from that failure.

Are e-mails and other electronic communications public record?
It depends on how you define public record. Are they available to the public? Typically not. Whether they become public record depends on how the company uses them and views them within a business. Typically, if you send something to another person in your organization, you don’t expect that it will then be communicated to the public. On the other hand, you would expect that it would be subject to review by anyone who works within the company, particularly your supervisors.

Companies need to have specific guidelines in place as to what the public access is. Generally, if you write something on a company computer, the company has the right to look at it. If the employee is writing bad things about his supervisor or he’s sending off personal e-mails and getting involved in illicit things through his work computer, the employer has the right to not only access those communications but then to use them in actions against the employee. But are the e-mails part of the public record? Probably not.

How common is it for e-mails and other electronic communications to be subpoenaed into a court of law?
Typically, if Parties A and B are involved in a lawsuit, the court will not subpoena their documents because they’re already in the case. The lawyers will simply ask their opponents for electronic communications. It’s a burden, it’s expensive and it’s difficult, so parameters are usually negotiated. How far back? Who? What subjects?

Subpoenas are for third-party sources of documents. For instance, if a vendor/customer relationship is relevant to a lawsuit, the lawyer may go to the vendor and ask for e-mails to or from the customer.

Though subpoenas are very common, courts tend to be more protective of the third party because it’s not involved in the litigation. Strict limits are set on what communication must be produced. The judge may even ask the requesting party to bear all or part of the cost of executing the subpoena.

So remember that when your company is subpoenaed, the process is subject to negotiation. If collection will be terribly burdensome, you need to document it through your IT person. Most courts will tell the lawyers that their clients must pay at least part of the cost if they want the documents bad enough.

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.