Do You Really Want to Use Email that Much?
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We have preached about the downside of email use. There has always been a danger of writing something you later regret or mistakenly sending an email to an unintended recipient. Also, the risk of making a hasty, knee-jerk, and often stupid comment is much higher. And, there is an even worse scenario, giving confidential information to someone who should not have that information.
Now, however, there is new reason to significantly reduce the amount of email you or your company sends. Federal and state discovery court rules require the production of information related to a case contained in electronic media (EM), including emails, text messages, hard drive records, photographs, sound recordings and other data. Parties are now able to demand electronic records in searchable form and not simply print the records, as permitted in the past. This, of course, is a double-edged sword that may benefit you, but it has the ability to harm you as well. For this reason, what is put into electronic form (e.g., email) is important as to both content and quantity.
How can you minimize your risk?
- As a business, determine a policy that limits what goes into your email and other EM and the volume of email communications. Less is more. The policy should be written and everyone who has access to the company email should be provided a copy.
- Be very cautious about using EM for internal communications and be especially careful about saying something that can be interpreted negatively about you and/or your business.
- It is okay to use email to communicate about specific and some general business matters, but be limited. In most instances, a phone call or personal meeting is the best form of communication.
In summary, every situation is different, but here are some steps that you may choose to implement as a result of the rule change:
- Assess specific needs for maintaining documents electronically. These needs can be different for your general and product specific matters relating to your principal.
- Develop a comprehensive data retention policy based on the needs of you and your principal. Make hard copies for the file of items that are or might become important (e.g., communications relating to your relationship with your principal and/or current, rep agreement issues, etc.
- Become familiar with the details of electronic retrieval. This makes it easier to react quickly if called upon to provide information in a lawsuit.
- Establish the responsibilities of outside consultants, including attorneys and other business advisors.
- Discourage employees from sending emails or other EM communications that include confidential or personal information.
- Consider having employees use telephones for routine communications instead of constantly emailing messages.
- Work with information technology (IT) advisors.
- Spell out the procedures concerning emails and other electronic communications.
- Take a professional approach in all electronic communications.
- Consult with legal counsel to ensure that the electronic retention policy is in full compliance with the new requirements.
When it comes to using email as a business tool, proceed with caution. A mistake that takes a few seconds to make can take a large amount time and/or money to make right, if that is even possible. While these suggestions are not foolproof, at least revewing and discussing them with your personnel is a start at understanding the issues and how to address them.