If you are like most people, you use email daily. You use it to let your secretary know about an event that needs calendaring, to send a note to colleagues, or to notify clients of the latest and greatest widget. It is a business convenience. Unfortunately, today's business convenience has the potential to become tomorrow's legal nightmare.

 
People view email as causal, inconsequential and easily deleted correspondence; when, in fact, the opposite is true. In the legal word, email is discoverable, i.e. subject to review by the opposing side.  It is a minefield. Once litigation commences, the Federal Rules of Civil Procedure require organizations to locate, preserve, and produce electronically stored information, such as email that may be relevant to a particular case, quickly, accurately, and comprehensively. Also, you may be required to preserve all relevant electronic files in anticipation of litigation.

 
Even before litigation commences, your email correspondence could be scrutinized. In 2006, in an attempt to uncover her source in a media link, HP “bugged” email sent to Dawn Kawamoto of CNETnews.com.  It utilized the service of a company called ReadyNoftify. The tracking mechanism provided by ReadyNotify allowed investigators to see who opened a file attached to an email. The objective was to determine whether Kawamoto forwarded email to her source to determine who was leaking HP confidential information.[i]

 
Consider also the recent Senate Permanent Subcommittee on Investigations Hearing where Senator Carl Levin confronted Goldman Sach's, Dan Sparks, about his company's email correspondence regarding an investment. The email stated, "'boy that Timberwolf was one shitty deal." Levin inquired how much of that "shitty deal" Goldman Sachs continued to sell to its clients.[ii]  Should you cease using email correspondence as part of your business routine? No. Should you get smarter about your use? Absolutely. Follow these five simple rules.

Rule No. 1

Use Email Less Frequently

We live in a tech world -- so much so that the younger generations actually think LOL is part of the English language. While it is often much quicker to send an email from our iPhones and BlackBerrys rather than make a phone call, recognize that sometimes it is better just to make that call. Consider all of the things that can go awry in sending an email: it could be sent to the wrong recipient or attach the wrong document.  And, frankly, even more dangerous is the fact that things are often stated in emails that probably would not be stated in other correspondence. And, let’s not forget the knee-jerk reaction that many have when it comes to replying to emails.  So, use it less frequently.

Rule No. 2

Establish An Email Policy For Your Employees

Do you know what your employees are doing when it comes to email correspondence? Are they forwarding jokes, archiving emails; or even creating binding contracts without your knowledge? The fact is employees may be doing things that are against your business interest. Prevention is the best medicine. Your policy should cover the following basics:

• Email should be professional and courteous.

• Email must not contain any illegal, libelous, or offensive statements.

• Email is for business purposes, not for personal use.

• All email is company property.

• The company has the right to access email sent to or from every computer.

• The company has the right to retrieve email stored on its servers that users have deleted from their email programs.

• Employees who violate the email policy will be subject to disciplinary measures or termination.

Rule No. 3

Keep Business Correspondence Separate From Personal Correspondence

The independent research firm of Osterman Research conducted a study of mid to large sized U.S. corporations, called the MessageOne Study.  The purpose of the study was to learn about employees' individual email usage habits and patterns. What was discovered was this startling fact:  the average employee sends and receives an average of 170 emails per day at work and that nearly a third of the respondents use their personal email accounts (e.g. AOL, Yahoo mail, Hot Mail etc.) for business purposes at least twice a week. Even more startling is the fact that 17% of the respondents use their personal email accounts for business every day.[iii]   And, it appears no one is immune.  Remember the Sarah Palin email debacle? She used personal email for business correspondence in the Troopergate scandal.[iv] While personal correspondence may still be discoverable during litigation, a better case can be made to prevent disclosure of personal email correspondence if it is not used for business correspondence.

Rule No. 4

In Business Correspondence, Write As If You Were Sending A Formal Business Letter

If your email is subject to review during litigation, it will be far less embarrassing if it is written in a formal tone, with proper grammar and punctuation. Recall the Goldman Sachs' email. Need anything further be said?

Rule No. 5

Clean The Metadata Before You Send Attachments

Last but not least, if you decide to send a document via email, be sure to clean the metadata first. Metadata is data about data. Metadata is the information behind the words; it is information about the history, tracking or management of an electronic document. Failure to appreciate its importance could be detrimental to your business. Microsoft word

and all similar file formats have methods by which you can clean the metadata. There are also programs you can install that will scan your documents before you send them. When all else fails, send a hard copy.

Bottom line – in today’s world it is impossible to avoid email.  It is not, however, impossible to avoid using email recklessly and in a manner that might cause you and/or your company irreparable damages.  Remember the Five Rules:

• Use email as infrequently as possible.

• Establish an email policy for your employees (one that you follow as well!).

• Keep business correspondence separate from personal correspondence.

• In business correspondence write as if you are sending a formal business letter; and

• Clean the metadata before you send attachments.

Following these five simple rules cannot hurt and they could make a positive difference further down the road.