Why E-mail is dangerous
Forbes , July 26, 1998
THANKS TO COP SHOWS from Dragnet to NYPD Blue, most Americans over the age of 10 know that "anything you say can and will be used against you in a court of law." We think the warning applies only to criminal suspects.
It doesn't. Civil discovery requires lawsuit defendants to produce just about anything the other side wants to see. That means that anything you've said or written can be used against you in a court of law.
As Microsoft has recently discovered (to its chagrin), "anything" definitely includes electronic mail—the most outspoken medium around.
People will say things in e-mail they wouldn't say in person, and wouldn't even think of putting in a memo. Something about the medium encourages writers to disclose personal information, give frank opinions about other people, tell jokes, pass on gossip, ask potentially embarrassing questions, toss off half-baked ideas and state things as baldly—even hyperbolically—as possible.
For an organization that wants to encourage creativity, such open communication is invaluable. So, for the savvy executive, is e-mail's ability to circumvent the normal business hierarchy. In his 1996 book, Only the Paranoid Survive
But the threat of litigation makes all that great communication dangerous. "Conversations, good and bad, can become stuck like insects in amber, frozen and preserved for posterity," notes Joan Feldman, president of Computer Forensics Inc., a Seattle-based firm that advises attorneys on the use of computer-based evidence. Inflammatory E-mail, Feldman says, "is used to provoke a strong emotional response from juries." Since juries get only a pinhole view of a complex panorama, a single extreme message can have a disproportionate impact.
Writing in the New York Law Journal, Stevens R. Miller, another online forensics expert, quotes Cardinal Richelieu: "If you give me six lines written by the most honest man, I will find something in them to hang him." For hanging honest men, Miller exults, "the computer-savvy attorney can rely on Richelieu's maxim for as long as E-mail remains in use."
Suppose you e-mail an employee whose project is running late: "I don't want to hear about how it isn't working right. I just want you to get the thing done." Is that blunt talk from a tough boss who doesn't want excuses? Or is it an instruction to cut corners? You can bet which way a Miller-inspired plaintiff's attorney would interpret it.
Two major business trends are colliding. On the one hand, we have the emphasis on making companies less bureaucratic, less mindlessly formal and hierarchical, and more open to ideas and feedback from all employees. Knowledge is the firm's key asset, and sharing dispersed knowledge among its most important challenges. E-mail is a powerful tool in advancing that vision. Meanwhile, ever expanding legal liability punishes open communication, particularly in cases that hinge on intent—from revitalized antitrust enforcement to the panoply of employment laws.
Analysts who celebrate the freewheeling culture of the entrepreneurial "new economy" and embrace business as a means of self- expression rarely worry about liability issues. Complaining about legal excesses, they seem to think, is tacky and conservative—something "right-wingers" do.
In fact, "new economy" advocates are the very people who should be most concerned about the legal system. Stuck in a time warp, the litigation process threatens their vision of economic creativity. It demands the rule-bound bureaucracy and self-censorship of the Organization Man era. It may do so in the name of "empowering women" or "protecting competition," but the message is: Keep your opinions to yourself. Don't ask questions. Just do what you're told.
That should worry anyone who cares about innovation, enterprise or freedom of speech.