Be careful with your business email

By JANE LARSON
The Arizona Republic

Business e-mail often is full of "smoking guns" that can harm a company if and when a dissatisfied employee, customer, vendor or regulator files a lawsuit.
"No one is immune from this — large lawsuits, small lawsuits, large corporate clients or very small corporate clients," Christopher Stuart, a Scottsdale, Ariz., lawyer said last month at the Biltmore Bank of Arizona's small-business seminar.

E-mail users sent 60 billion messages a day in 2006, Stuart said, creating a wealth of communication. And the more communication, the more likely it is that an opposing side can find damaging e-mails.

Stuart advised businesses to consider these three caveats regarding e-mail:

• Discourage non-essential use of e-mail. E-mail can be a speedy timesaver or a handy tool to document transactions, Stuart said.
"What it's not good for is every single time you want to vent a frustration or talk about something that's going on in the office or with a client relationship," he said. It's those nonessential communications that end up as smoking guns surprisingly often, he said.

• Don't push "send" without asking yourself, "Would I write this under the company letterhead?"
Employees should vet an e-mail enough to be willing to stake the company's reputation on what is said, Stuart said.

• Think before hitting "forward." This is especially important with communications that have disclaimers at the bottom, Stuart said.
Attorney-client privilege, for example, is waived if the client forwards an attorney's e-mail regarding legal matters to someone else.
Don't think deleting or erasing information from hard drives will solve the problem. State and federal laws require parties in a suit to preserve potentially relevant information, electronic and otherwise, and courts have imposed penalties on businesses that fail to produce such information.
For example, investment bank UBS Warburg was penalized $29 million for failing to retain e-mails that might have been relevant in a former employee's wrongful-termination case, Stuart said. Phoenix company Mesa Air Group Inc. recently lost a lawsuit in part because the chief financial officer cleaned out his hard drive.

Good uses of e-mail

There are good ways to use e-mail, Stuart said. They include:

• Documenting terms, and your interpretation of the terms, when negotiating a sale. E-mails describing what you think a contract means can help ward off legal disputes later, Stuart said.

• Documenting instructions that you receive from customers. These can help show that the business did what the customer requested, he said.

• Showing respect for customers and vendors in internal communications. These provide positive examples of how a company does business.