Email is Not Private

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Authored by attorney Patrick A. Genzler

Electronic mail has become the de facto principal means of communication for most businesses today.  And, in most businesses, email is widely used by many employees to perform company business.  However, the ease with which we can communicate and transmit documents by email comes with certain risks, particularly when your company becomes involved in a claim, litigation or an arbitration.

Most attorneys who represent construction companies in litigation or arbitrations can tell stories of how a single email or an email chain became the ‘smoking gun’ that either made – or sank – their client’s case.  It appears that most employees regard email as a private or confidential means of communication, and will often say things in an email communication that they would not say in a written letter or in person. Emails can include embarrassing personal information about company officers or co-workers, critical comments about your company’s work, or even allegations of misconduct or malfeasance by your company.  You should be aware that:

  • All forms of communications, including email, SMS “texts”, voice mail, and social media postings, are “discoverable” in litigation or arbitration.  Today, these are the first things that an attorney representing a party in litigation will request, because this is where the “smoking guns” are usually located.
  • Courts have ruled that employees do not have an ‘expectation of privacy’ in company-provided email systems, and any personal or other information in company email is within the control of, and must be produced by, the company.
  • Many companies use free web-based email, such as Google’s “gmail” system.  However, Google has specifically advised in their terms of use that they do not consider Gmail to be “private” and they will produce gmail messages in response to a subpoena or government information request.

The best advice you can give to your employees is:

  • Company email is not to be used for personal communications – it is solely for company business.  Employees should be clearly advised that any personal information they send in email is not private and is available to the company or to other parties in the event of a dispute.
  • You should not put anything in an email that you would not put in a formal letter.  You should not put anything in an email that you would not want to read out loud in court, or would not want to read on the front page of the newspaper – because chances are that either or both of these can happen.

Do not discuss company business on social media websites, such as Facebook or Twitter.  These sources are not only discoverable in a dispute, but they are often available for public searching and reading.

Ensuring that your employees follow these tips can help avoid embarrassing and potentially damaging information from being “discovered” in any future disputes, and is a good business practice.

These articles are meant to bring awareness to these topics and are not intended to be used as legal advice.

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