E-Mail: Mine Field of Legal Liability

Article excerpt

Employees at Amazon.com, the popular Internet bookseller, recently received in their e-mail a directive from senior management that struck some as Orwellian.

As part of an event that the Seattle-based company designated "Sweep and Keep," employees were instructed to purge, among other things, e-mail messages that were no longer required for business or not subject to legal records requirements. Free lattes would be dispensed in the cafeteria to those who complied immediately, the directive said.

This Amazon "document retention" policy, which requires employees to expunge electronic files regularly, was followed a few weeks later with guidelines for "document creation." "Quite simply put, there are some communications that should not be expressed in written form," the Oct. 20 memo stated. "Sorry, no lattes this time!" Never mind monopoly power in the marketplace; the real lesson corporate America is taking away from the Microsoft antitrust trial is that old e-mail can be a mine field of legal liability, not to mention a source of public embarrassment. In the high-profile court battle between the Justice Department and Microsoft, e-mail has emerged as the star witness -- a fact that appears to be giving pause to corporate executives accustomed to clicking "send" without a second thought. "I love e-mail," said Jeff Bezos, Amazon's founder and chief executive. "I think it is changing the world. The problem is somebody can take it out of context and use it against you, and we have to guard against that." Amazon, like many companies, had embraced e-mail as the preferred way to communicate about business matters. Instant, convenient and at least putatively private, it allows the lowliest employee to discourse with the most exalted. And it provokes spontaneous, if not always eloquent, brainstorming among colleagues who might otherwise keep their thoughts to themselves. Now, Amazon, which to many people symbolizes a progressive Internet culture, is among the growing ranks of companies that are imposing new restrictions on e-mail. Unlike earlier policies prohibiting abusive or harassing electronic messages, the new rules tend to curb types of expression that have long been deemed acceptable business discourse. And when such exchanges must take place in writing, the prevailing philosophy would have them expunged as quickly and ruthlessly as possible. This backlash underscores a paradox of the information age: While instantaneous electronic communication often helps increase productivity and innovation, the privacy of workplace correspondence and accountability for what is written are growing concerns for many employers. Often, e-mail is more a conversation that happens to be written down than an actual letter, and it is often more revealing than either. It has thrived largely because of the assumption -- some would call it the illusion -- that the rapid-fire confessional exchanges that e-mail seems to encourage will never be divorced from their context. But that is often not the case in legal disputes, where e-mail is increasingly being treated as the ultimate window into the true thoughts of executives and the inner workings of an enterprise. Among Microsoft trial's electronic highlights: The company chairman, Bill Gates, in a sworn deposition, flatly contradicts his e-mail statements, and an e-mail from James Barksdale, chief executive of the Netscape, to America Online's chairman, Steve Case, in which he refers to Case as "Franklin D." and himself as "Joseph Stalin" in a strained -- and ultimately embarrassing -- allusion to the leaders of the United States and the Soviet Union in World War II. …