SMOKING GUN
E-MAILS
E-mail
is now firmly entrenched as a critical method of communication for
many U.S. businesses. But there are several drawbacks to E-mail,
and Merrill Lynch is one of the latest victims of smoking gun E-mails.
Years
ago Merrill Lynch analysts were publicly hyping Internet stocks.
The firm had built a recognized expertise in that particular market.
But during the current New York state attorney general's investigation
into practices of Wall Street investment banks, a series of very
damaging E-mails shows what those very same analysts really thought
about those stocks: "piece of junk" and "piece of
crap" are two of the printable descriptions they shared with
each other way back when, expecting those communications to remain
private. Not exactly the information Merrill Lynch wants the government-or
its clients-to know.
Litigators,
also known as trial lawyers if they actually go to court as opposed
to merely pushing paper and negotiating settlements, know the ripe
minefield of E-mail and usually now include specific requests for
E-mails in their discovery requests. Courts typically do not restrict
such requests, which then requires businesses to disclose E-mails
to the opposing party.
The
problem with E-mail is that we tend to think it is as private as
a spoken conversation, leaving no trace of what was said other than
someone's forgetful memory. Plus, E-mail is effortless. The "reply"
and "send" buttons are far too easy to push, and we often
give ourselves the freedom of honesty expressed in the context of
a relationship of trust, never thinking about the effect of that
communication outside that trust.
And
here's a hidden cost of litigation: in a lawsuit that requires the
production of E-mail, the business producing the E-mails has to
pay someone to sift through all of the company's E-mails, and determine
which ones should be produced. In lawsuits against cities, it is
possible to obtain E-mails of the mayor and city council from private
E-mail addresses and accounts as well as the official city addresses.
Most trial lawyers I know insist on double-checking the ones to
be produced, to guard against disclosing too much, and rightly so.
But at their standard hourly rate, of course. Depending on the volume
of E-mails on multiple computers, this can be a very costly and
disruptive process for businesses and employees.
Does
your business have a policy on E-mail usage and retention? It should
at least urge employees to use good judgment in their writings and
strongly prohibit personal usage of company E-mail accounts. Employees
probably should be reminded of the policy regularly as well.