Electronic Mail: From Computer to Courtroom

Article excerpt

AT THE CORE

THIS ARTICLE EXAMINES:

* the legal discovery, admission, and use of electronic mail as evidence

* the role of records and information professionals in the discovery process

* how records and information professionals can prevent the discovery of damaging electronic mail

New forms of records creation are being developed, implemented, and incorporated into information systems regularly. Information that was once solely documented on paper is now created and stored on tapes, disks, and drives. Print copies, once signed, sealed, and delivered, now traverse the office -- and the world -- on cables, lines, and via satellite transmissions.

Although not yet realized in practice, talk of the "paperless office" continues to permeate the rhetoric of business and technology markets. Do these changes trouble records and information managers as much as they seem to fascinate them? Records and information managers should not only be concerned, but they should be preparing for the challenges of new technologies.

One area to which records and information managers should pay special attention is the use of electronic records in the litigious context. In the past, when a corporation or business was a party to litigation, it was often forced to make the contents of its paper recordkeeping system available to the court. Paper documents were seized and the contents scoured for information relevant to the complaint in the action. If a document was of use to the court, it was often admitted into evidence.

This procedure is still the standard for procuring documentary evidence from corporations. However, with the growing reliance of the business world on electronic records and information, a new ingredient has been added to the mix. How does one seize and make use of potential evidence that is intangible or "virtual"? The same technological advances making electronic records possible are also providing the means of making use of those records in court. A nightmare of electronic incrimination may lay in ambush for the unsuspecting, unprepared records and information management professional.

E-mail: How America Does Business

Most large companies now have their own custom-designed and internally managed computer networks (Goldstein 1994), and most of the staff is online to some extent. In many corporations employees use e-mail as their primary mode of intraoffice communication (CCQ 1995). E-mail is an attractive mode of communication because of the many benefits it has to offer:

* It is easy to use and manage.

* It requires little preparation.

* It makes the message-delivery process nearly instantaneous.

* It allows work to be done asynchronously.

E-mail has virtually revolutionized the way humans communicate, both at work and at home. Its popularity will continue to grow.

Yet, as with almost anything designed to make life and labor easier, e-mail has inherent in its nature the potential for abuse and disaster. As such, it must be used judiciously. In the context of the business and legal worlds, records and information professionals and those they serve should be aware of at least one major pitfall: If litigation occurs, a company's adversary may be able to obtain those bits and bytes that flow through its network and reside in its systems. Through the process of pretrial discovery, parties may be able to get access to their opponents' electronic records (CCQ 1995). One may not be able to see them or touch them in raw form, yet be compelled to produce them for the court.

The National Archives and Records Administration (NARA) defines e-mail as "a document created or received on an electronic mail system, including brief notes, more formal or substantive narrative documents, and any attachments that may be transmitted with the message." NARA defines an electronic mail system as just that: A system used to create, receive, and transmit messages. …