This article originally appeared in the December 4, 2005 issue of the Alaska Journal of Commerce.

Consider what federal figures Michael Brown and Jack Abramoff have in common with the likes of past state leaders Tom Irwin and Gregg Renkes.

Each of these gentlemen wrote e-mails that eventually came back to bite them. And each have the word "former" leading once-powerful job titles.

As technology advances, and the population shifts to newer and faster communication gizmos, the days of official letterhead and phone conversations are dwindling.

And attorneys have found a new method of investigating a case by requesting copies of e-mails and, increasingly, instant messaging records.

"Lawyers love e-mails," said Anchorage attorney Bruce Davison. "There's no thought to content, they show bias and prejudice.

"But we hate them, too. For those same reasons."

Nearly 70 percent of employees who use e-mail at work have sent or received messages that could place their company at risk, according to a recent Harris Interactive survey. Risky messages included such things as passwords, login information and jokes or funny stories with a sexual connotation.

Davison said that electronic communications have developed into a more relaxed form of conversation, stripping people of a formal, even guarded, business etiquette.

"We do it conversationally and communicate in the same style as we would on the telephone," Davison said. "The result is that things that are talked about would not normally be written down if we were sending a more formal communication through the mail.

"You're not going to remember a phone conversation from years ago," he added. "You never would have written down everything you talked about, like what you did last weekend or given a link to a good porn site or told that dumb-blonde joke."

The thing to remember is that every e-mail could potentially be viewed by the world, he said.

Alaskans may remember the trouble an e-mail brought to former state Department of Natural Resources Commissioner Tom Irwin, whose confidential memo questioning the governor's contract negotiations lead to his dismissal.

Or to former state Attorney General Gregg Renkes, whose e-mails indicated he used his connections with investors and the governor to influence a major coal deal with Taiwan.

Or to Michael Brown, the former director of the Federal Emergency Management Agency, whose messages showed he sought advice on such trivial matters as dog sitters and the color of his tie as Hurricane Katrina slammed the Gulf States.

Or the e-mail released this month by U.S. Senate investigators showing details of former lobbyist Jack Abramoff's plans with businessman Michael Scanlon to allegedly defraud Indian tribes out of tens of millions of dollars.

In official investigations, electronic communications - even those from years ago - are fair game. Messages written by government employees are likely public record, while messages from private-sector employees are subject to subpoenas or search warrants.

"It is a written, discoverable record that may be used against you in any litigation over the next three, four, five years," Davison said.

Cases that request electronic communications - which is fast becoming the norm - are document-intensive, Davison said, meaning it adds to the expense of litigation.

During the information-gathering process, attorneys may ask for "every form of electronic communications" from everyone relating to the case, Davison said. E-mail often results in tens of thousands of documents that must be reviewed.

Companies may spend thousand of dollars just gathering that data. Davison said he's heard of cases in Alaska where the discovery portion exceeded $1 million for one side, in large part due to gathering and sorting through e-mail.

Think of the volume of e-mails that run through a company's servers each day. A two-year construction project, for example, may involve dozens of people, including architects, engineers, contractors, subcontractors, as well as the owner and the owner's teams of designers and consultants.

The attorney for the company named in the suit must sort through the e-mails, eliminating those not relevant to the case. Faster attorneys could get through a message a minute. Davison's rate is $180 an hour.

Attorneys must also review attachments, as well as the traditional documents relating to a case, also at their hourly fee.

A disc of the messages then goes to the opposing side, whose attorneys sift through the messages, again, often charging a per-hour fee.

Some of those messages may be damning, even going so far as to admit guilt.

"When they surface, they can be used in a deposition," Davison said. "There's a huge amount of e-mails that deal with things that are embarrassing, irrelevant or that are confidential."

IM growing
A fast-growing form of electronic communication, instant messaging has been referred to as turbo-charged e-mail.

Much like e-mail, instant messaging allows users to communicate back and forth with text rapidly via their computers.

According to a 2004 American Management Association survey, 31 percent of those questioned said they use instant messaging at the office, and 90 percent of them spent up to 90 minutes a day IM-ing.

An America Online survey released earlier this month showed that many Americans now send more instant messages than e-mails. Some 58 percent of IM users at work send instant messages to colleagues, while 49 percent use the method to get answers and make business decisions.

Some 47 percent of Seattle-area respondents said they were most likely to say things in an instant message that they wouldn't document in an e-mail.

That may put companies in danger, experts say. While the sender may not be keeping a log of the message, the receiver might be. And that makes the document open to litigation procedures.

Retention policy
National surveys show that only about 65 percent of companies have e-mail retention policies. Meanwhile, one in five companies has had employee e-mail subpoenaed in a lawsuit or regulatory investigation.

Employers must also consider something called "vicarious liability," a legal term that means that employers can be held responsible for the actions of their employees.

To better protect themselves, employers need to establish written e-mail retention policies, then educate their workers and enforce the policy, Davison said.

Businesses must keep all e-mails starting from the time any litigation is anticipated, even if it goes against the retention policy, Davison said.

If messages are accidentally or intentionally destroyed, the company may be subject to fines. The burden of proof may also shift to that company to prove it didn't delete the messages to avoid disclosure.

Some companies are now adding monitoring technology to record or sample e-mail and IM correspondence.

The main lesson, Davison said, is this: "Don't put anything in an e-mail that you don't want to be confronted with three years from now by your worst enemy. Or that you wouldn't want to see in the newspaper tomorrow."

Melissa Campbell can be reached at melissa.campbell@alaskajournal.com.
 

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