Email--Not Just Communication But a Legal Document of Record

The Internet has become so ingrained in everyday business that I'd venture to say not many of us even think about communicating or conducting everyday business with hardcopy anymore. Tracking documents through the standard U.S. postal service mailing options (registered or return receipt) has given way to a variety of sending and receiving options for email.  Senders of emails will often attach documents, carbon and blind copy themselves as well as include large distribution lists--leaving emails scattered within inboxes, outboxes, or personal folders on local, network, and backup media.

Recipients on the other hand can receive messages in their inbox or have filters enabled that automatically detect junk or spam, move messages to alternative folders, or delete messages altogether. The paper trails of yesterday have given way to electronic bread crumbs that must be followed for locating email and attachments to prepare for impending litigation.

While we may think of email applications as a communication tool, the formal definition of what constitutes an individual email is changing. Regardless of an email's folder location, intent, or status, email is a vital piece of corporate electronic information and no different than any other document. Email is now much more than just a communication mechanism but a legal document of record that can be used to an organization's advantage. Consider these recent court cases:

• Kasten v. Doral Dental USA, LLC, 2007 Wisc. LEXIS 405 (Wis. June 22, 2007), the Wisconsin Supreme Court reversed and rejected the findings of the trial court's conclusion that email was a communication rather than a document. They concluded that "Company documents" in the company's operating agreement was, in fact, a broader term than "records" and included drafts and emails that were not private communications.
• Roth v AON Corporation (N.D. Ill. January 8, 2009), Magistrate Judge Morton Denlow held that an e-mail and attached draft of disclosure language circulated for comment among corporate employees and in-house counsel was protected from eDiscovery by plaintiffs in a pending securities fraud action.

While these two favorable rulings begin to formally define email as corporate document, they more than ever reinforce the importance of the proper use of corporate email. In viewing just a few recent cases at Kroll Ontrack, one could make the argument that courts are extending the definition of corporate email to include areas that many emailers now consider safe. If anything, the courts are getting more tech savvy about where email is sent from, how it is received, where it is stored, and how it is hidden--reinforcing the importance and status of email as a corporate document.

• Citing Sedona Principles, Court Allows Forensic Imaging of Former Employee's Home Computer. In this case, the court stepped in so that unintentional destruction of relevant evidence on home computer was halted
• Court Denies Motion to Suppress E-mail Evidence Obtained from Internet Service Providers. The court found that the Stored Communications Act (SCA) does not provide a suppression remedy and concluded that the government's reliance on the SCA was objectively reasonable.
• Court Denies Employee's Claim of Privilege in Email Sent from Employee Email Account over Employer Server. The court agreed that corporate email is to be used solely for business purposes and that employees have no personal privacy rights in any material created or communicated on the company computer systems.
• Court Orders Production of Relevant Material in Spite of Alleged Computer Incompetence.  This statement pretty much says it all

Email documents are vital to the life of an organization and must be handled just as any other legal document would be to safeguard corporate information. But courts are becoming savvier at sniffing out fraudulent activity so eDiscovery tools need to be selected to help protect corporate assets. Estorian LookingGlass is one such product that is able to search all inbound and outbound messages but also able to search on the inbox, outbox, Sent, deleted, draft, and personal folders. Features such as their spherical indexing and tracking of emails (even unsent emails) allows companies to see email activity regardless of where an email originated from or ends up so they can sniff out and head off potentially damaging activities.