The risks lurking in your “inbox”

How many of us have been involved in, or heard about, some sort of email disaster…? An accidental use of  REPLY ALL. An unintended REPLY rather than FORWARD. Or even just  a “heat of the moment” reply that was too easy to send before waiting for rational thought processes to return!

Emails are seen as less formal than other forms of business communication and documentation – people are more candid, and less thoughtful about what they write. As emails have become the primary medium for how we communicate, and started to create an exponentially increasing volume of business documentation, email management has created a legal nightmare for businesses.

What legal significance can an email hold?

From an “evidence” perspective, email is a business document, holding the same legal and evidentiary weight as any other business document. It can provide very important proof if there is ever a disagreement. However, emails also can also pose a large issue – if a corporate email policy is weak, or not strictly enforced – and when emails simply can’t be found when they are needed.

If you are a bit of a “delete the entire inbox” kind of person, it might be interesting for you to note some stunning examples of the possible costs of failing to keep important email documentation. Zubulake v UBS Warburg is one of my favourites. It may be an American case, but it demonstrates the point well. The case related to an employment discrimination dispute. A number of crucial internal emails at the time of the dispute “went missing” , with the stunning result that the court assumed that the missing emails would have been damaging (even though they had never been seen by the court) – and awarded an eye watering verdict of more than $29,000,000 in damages and harsh sanctions.

Areas of email risk

The greatest risks created by emails can be broken into these 4 main categories:

1. Increasing opportunity for contractual risk – Contracts can formed by email. Standards can be defined by email. Terms can be varied by email. Concessions can be made, rights can be waived, and your legal position can be blown out of the water by accident. If you don’t have a policy for what things can go in email, and what things can’t (and proper guidelines on what staff have the right to make decisions on, and about various issues) – and you don’t have this policy adequately reflected in the terms of your contracts with suppliers, clients, and business partners – you are leaving the gates open for the floodwaters to seep in…
2. Potential for loss of a business’s intellectual property – Email technology makes it possible for confidential information to be leaked out of your office at merely the press of a button. After taking the first steps of locking down confidential information so it can only be accessed by staff who really require it, on a broader scale, education and communication are key.
3. Difficulty in finding documentation in proving your case, and sky rocketing legal costs in disputes. When our clients come to us in relation to any dispute, the first thing we need is ALL of the supporting documents, all of the trail of information. If your case is reliant on you finding information recorded from multiple people who recorded that information in multiple ways, your case is doomed. Emails can provide proof, but finding that supporting documentation when it is from emails or scattered documentation is generally very expensive, and time consuming. What happens if the people who were involved with the matter have now left the organisation? What happens if you need a copy of one email sent 6 years ago to prove your case? Where do you start looking?  How accessible are these emails in tight timeframes?
4. Failing to meet compliance requirements – Many email documents could be categorized as documentation that is required to be retained form a compliance perspective. If you don’t have a solid document retention policy in place, you are risking potential breaches of legislation.

In the next issue, we will provide a raft of tips about what steps you can take now to reduce the risk that emails pose to you and your job, and the risk they pose to your organization.

But in the meantime, if you would like assistance with education in your work environment, or assistance in designing systems to help reduce the risk posed by emails, contact us at info@aspectlegal.com.au – we would be only too happy to help!