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The Scary Truth About Emails

By Debbie Elicksen

Imagine if Moses took less care and attention in writing the Ten Commandments and instead of etching stone tablets, he sent out an email. Instead of scribing, “thou shalt not steal” he wrote, “thou shalt not steal” or “thou shalt not cover thy neighbor’s wife.” How would people interpret what he meant? If your neighbor’s wife were found shivering in the prairie hillside, you wouldn’t give her a blanket?

How are your emails being interpreted? Did you know that poor email management has contributed to numerous lawsuits? Courts are sequestering emails as part of discovery and failure to comply has resulted in case losses and numerous fines. Some of the court-ordered emails have included everything from personal notes to friends and families, forwarding of jokes, sexually explicit content, and anger-written emails that can fuel a libel case.

The following are just a handful of court cases where emails were used for discovery:

  • Zubulake v. UBS Warburg LLC, 2004 U.S. Dist. LEXIS 13574 (S.D.N.Y., July 20, 2004)

  • Dodge, Warren, & Peters Ins. Servs. v. Riley, 2003 WL 245586 (Cal. Ct. App. Feb 5, 2003)

  • McPeek v. Ashcroft, 2003 U.S. Dist. LEXIS 172 (D.D.C. January 9, 2003)

  • Rowe Entertainment, Inc. v. William Morris Agency, Inc., 2002 U.S. Dist. LEXIS 488 (S.D.N.Y.), motion denied, 2002 U.S. Dist. LEXIS 8308 (S.D.N.Y.)

  • Playboy Enterprises, Inc. v. Welles, 60 F. Supp.2d 1050 (S.D. Cal. 1999)

  • Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 U.S. Dist. LEXIS 16355, 1995-2 Trade Cas. (CCH) P71218 (S.D.N.Y. Nov. 3, 1995)

The United States has enacted legislation regarding email correspondence with respect to preservation, retrieval, and audits. For example: all pertinent emails have to be preserved for no less than six years and must be easily accessible during the first two years. Legislation includes both original and duplicate emails. In Canada, emails fall under the umbrella of business documents.

To protect themselves, companies need to create an email policy. With the help of computer technicians, staff, and basic organization skills, effective email management – including the prioritizing of emails and knowing what and when to back up to storage and easy retrieval – will improve customer service. It’s just good business practice and can save companies from grief should they ever be taken to court.

Read other articles and learn more about Debbie Elicksen.

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