Don't Let Employee Email Get You Sued

Based on the recent Apple-Samsung lawsuit and CIA Director General David Petraeus' dismissal, employee email isn't as private as we'd like to believe.

There's a lot you can do to protect employee email messages from being leaked to the media or to competitors. But in the case of a trial, email between employees are rarely considered privileged. That means a lot of private information could potentially be discoverable.

It doesn't help that eDiscovery plays a significant role in many trials and that email is an increasingly important piece of evidence. There's no better time to help your company by updating the corporate email policy.

The first step is knowledge. It's doubtful that other employees understand the risks that information in email messages can create.

A one-time training can bring current employees up to speed on what kind of information can be damaging to the company if a lawsuit happens. Once they have some basic knowledge, you may want to provide ongoing training programs for new employees, and as a refresher.

If you want to avoid being inundated with email messages asking what information can be risky, it may also help to have a written policy that employees can refer to.

But that won't prevent the creation of email that could be used against your company at trial. At some point, delicate information will have to be included in an email or at least referenced.

It's impossible to stop all potentially damaging email messages, so instead ensure that they're regularly destroyed, just like paper files would be.

Just because your company has infinite storage space for employee to save old email messages, doesn't mean you should take advantage of it. Schedule a meeting with executives to discuss the dangers of keeping email archives on company servers.

Implementing a policy of regularly deleting email messages, both from employee accounts and backup servers, means fewer damaging remarks will be available. Doing it at regular intervals will avoid allegations that the documents were willfully destroyed in response to litigation.

It may also save your company some money in electronic storage as an added bonus.

None of this provides guaranteed protection that no damaging email messages will be used against your client in court. But if email is turned over in eDiscovery, at least they'll do less damage.

Related Resources:

• Technology: Preventing employee emails from becoming "smoking guns" (Inside Counsel)
• Attorney Email Etiquette You Can't Afford to Ignore (FindLaw's Greedy Associates)
• Can You Survive a Day Without Email? (FindLaw's Technologist)