Litigation
BY ROBERT D. RACHLIN
They can be summarized in a nutshell: the ease of conversation and the permanency of a document.
In the mid-nineties I represented Vermont Microsystems, Inc., a small Vermont software developer, in a successful suit against California software giant AutoDesk, Inc. If lawyer trade journals are to be believed, this case - which resulted in the largest award in Vermont history - was the first, or one of the first, to make decisive use of an adversary's e-mails as the principal evidentiary component of the case. AutoDesk's liability for trade secret misappropriation was established largely through the often-careless statements made by its employees in the course of e-mail traffic back and forth. Since the mid-nineties, the use of e-mail in business and professional intercourse has proliferated to the point that, well, many of us would simply be lost without it. Sending an e-mail is not only as easy as picking up a telephone, but - and here's the rub - it's even easier. With e-mail, you don't have to interrupt anyone. You don't have to play telephone tag, you don't have to work your way painfully through a touch-tone menu of choices. You don't have to listen on the 'phone to fifteen minutes of soft rock waiting for the other party. You don't have to "waste time" on small talk or irrelevancies. You get right to the point.
Picking up the pace
With e-mail, as master-chef Emeril Lagasse might put it, communications have been "kicked up a notch." That means, among other things, that our expectations about the time it takes to reply have been kicked up correspondingly. When I started law practice in St. Johnsbury in 1959, most correspondence was by what we now refer to as "snail mail," we actually wrote letters. If I sent a letter to a colleague on the first of the month, it wouldn't surprise or shock me to wait for a response until, say, the 12th or 13th of the month.
Then there was fax. We still wrote letters, but we didn't have to mail them anymore. We could reach our correspondent in a minute or two. With the coming of fax, our expectations for a speedy reply rose as well. Since the correspondent, necessarily, had to have access to a fax, we had every right to assume that responses would be forthcoming by fax, probably within a day or two at the most.
Then it was evening and morning of the third day, and behold! we had e-mail. With e-mail it became normal and expected that responses would be received the very day the e-mail was sent. In Europe, to this day, where the pace of business tends to be more laid back, it is neither unusual nor considered rude to wait several days before answering an e-mail. But in the United States, where everything has to be done yesterday, a day or two can seem like an inordinate delay, unless, of course, the recipient is out of town, in court, or on vacation, in which case we have every right to expect that he or she will have turned on the "out of office assistant," which will immediately return an automated message reassuring us that our correspondent isn't replying immediately because he or she isn't there.
When we wrote letters and folded them up neatly inside another folded piece of paper, addressing that second piece of paper, and placing in the upper right hand corner a sticky colored piece of paper (what is it called? a "stamp"?) it was assumed that we took ample time to ponder the contents of our letter, to phrase it carefully, and to dispatch it with full awareness that we were creating a record which, if carelessly executed, could one day come back to haunt us. If we didn't want to make a record, there was always the option of picking up the telephone. After all, to the less scrupulous, a telephone conversation had what the politicians like to call "deniability." That is, "I didn't really say what he says I said, he just remembers it differently." With a letter, it was and is pretty hard to say that you didn't write what in fact you wrote.
Modern e-mail is even easier than a telephone conversation. Those of us who pre-date the e-mail era (and that's everyone who is reading this article, except a precocious youngster taking time out from hacking the Defense Department Web site) were conditioned to associate ease of communication with impermanency. That unconscious association, when applied to e-mail, can bite us badly. Because once the e-mail is sent, it is potentially permanent. It can be permanently archived in an electronic file, or it can be printed out and a hard copy retained.
To err is humiliating
Electronics, mouses, and hand-eye communication being what they are, it's all too easy for embarrassing, even dangerous and destructive, messages to be sent that would rarely see the light of day in the snail mail era. Take the angry message, for instance. In the old days, an angry message might be dictated and even transcribed on to a piece of paper awaiting signature. In the interval, the writer had a chance to cool off and think twice. If the writer didn't fulfill that important obligation, a good secretary would see to it that he or she did. That's not to say that inappropriate communications didn't exist in letter form, only that inadvertent and untimely communications of that nature were the exception, not the rule. Today, a "flame," i.e., an irate e-mail, can be off and running and over the goal line before the writer is aware of the damage about to be done. In an earlier age of the e-mail, you could always go quickly to the outbox, catch it, and delete it before it was winging on its way. Today, mail programs are much too efficient; once you hit the send button, you're dealing with a bullet flying with the speed of light.
There are other kinds of inappropriate content. As every employment lawyer knows, many a sexual harassment case has been built on the improvident exchange of e-mails. Likewise, with suits for gender or racial discrimination in employment. Would such documentation have existed in the snail mail era? Much less likely.
Some embarrassing errors are created by the very efficiencies that are built into the e-mail programs. For example, with Microsoft Outlook, armed with a large "contacts" file (address book), you can type in part of the name of the recipient, and the program will automatically fill in the rest of the name. But is it the correct name? A few years ago I wrote an e-mail intended for Harry Fell, a senior systems engineer on our Information Systems team at Downs Rachlin & Martin. I wrote "Fell" in the address line and hit "send". In fact, thanks to the efficiency of the mail program, the e-mail went winging its way to Bill Felling of CBS News. Fortunately, there was nothing in the e-mail of interest to 60 Minutes, and the lesson learned was a valuable one: always check the complete address line before hitting "send." This is easily accomplished with Microsoft Outlook by clicking on the icon that is designed to "check names," or if you're lazy like me, simply pressing control-K does the same thing.
Glitches
Sometimes technology is just too efficient. An electronic blip can trigger an action that was totally unintended. A good example is using an e-mail with a modem.
For some reason known only to God and Bill Gates (not necessarily in that order), an e-mail in process will sometimes send itself, presumably because of some stray electron in the 'phone line. Usually this isn't serious, nothing more than the embarrassment of having sent a truncated message which triggers an immediate follow-up apology. But it may be serious if the part of the message sent gives an impression different from what would have been created by the complete message. How can this be prevented? Easily. Don't fill in the address line until the message is complete and you're ready to send it. You can't send an e-mail that has nothing in the address line. Bill Gates simply won't let you.
Then there are the ever-popular "reply" and "reply all" buttons. "Reply all" is especially dangerous. Remember that you may not want everybody to whom the original e-mail was sent to read your reply, especially if one of those people is the subject of your reply. Hitting "reply" sends the message only to the sender of the original message; "reply all" sends it to everyone to whom the original message was sent.
To die, perchance to sleep
It isn't easy to kill Dracula, but it's easier than killing an e-mail. Or almost any other electronic file, for that matter. The simple truth is that deleted files - aren't.
In the VMI case, we were permitted to examine our adversary's hard drives. The examination was conducted by one of our client's own brilliant software engineers. With the help of Norton Utilities, he was able not only to discover, but to restore deleted files. He was even able to recapture and display pertinent parts of files which had been deleted using Norton Utilities' own super-delete program, which supposedly leaves no tracks. A couple of these deleted files were smoking guns pointing unmistakably in the direction of misappropriation. So don't think for a moment that deleting what you suppose to be damaging e-mail traffic will protect it from disclosure by a determined adversary in litigation. The only sure way to avoid being pilloried by an incriminating e-mail is to avoid sending it in the first place. Even if your recipient has deleted it, it's still there on the hard drive until it is actually written over with other data.
In the network environment, e-mails are usually stored on network servers, not the individual user's hard drive. Networks have varying protocols for back-up archiving. Archives may be retained for a week, a month or more, depending on the back-up cycle. Even if a file, e-mail or other, was retained on your individual hard drive and you reformat the entire drive, or rip it out, stomp on it, and toss it in the lake (after procuring the appropriate environmental permit), the same file may exist either on your network server or in one of the archives.
Thus, like the old soldier, electronic files don't die, at least for a while. But unlike the old soldier, they don't fade away, but just sleep until awakened by a determined engineer armed with the appropriate software.
At the beginning of this piece, I suggested that e-mails have the permanency of a document, although as easy to generate as verbal conversation. That was an understatement. A document can be destroyed without much trouble. It is far more difficult to destroy an electronic communication without a trace.
The limits of privacy
There are more and more court rulings that employees have no expectation or right of privacy with respect to their computer usage, as against the right of the employer to know what's passing back and forth to and from the network. In the network environment, there is really no such thing as "private" communications. Inappropriate use of computerized media is easily detectable by network technicians, acting with or without the sanction of management. Which is to say that, not only is an electronic communication potentially more permanent than a written document. It's detectable by far more eyes than a well-filed or hidden document.
To sum up
The ease of e-mail communication is misleading, because it suggests impermanence - like that original easy communication, word of mouth. In fact, it is potentially the most permanent form of communication that there is, short of engraving on a stone monument. It can also be transmitted and relayed to others beyond the intended recipients with the speed of light. The abuse of this ease by advertisers and spammers (senders of automated, unsolicited messages to huge lists of addresses), whose output plagues every e-mail user, should be a warning to the legitimate user. With the use of an "alias," a single designation for pre-programmed multiple addressees, a written communication can be disseminated to a huge audience in the blink of an eye.
I've said nothing about the extent to which rapid-fire e-mail capability may be compromising our ability and willingness to think, reflect, ponder, and carefully consider our communications. The communications revolution, with its concomitant increase of our expectations of speedy replies, has severely attenuated the thoughtfulness behind what we communicate. That revolution and its consequences is a big subject on its own. One could go on at great length about how ease of communication has varied inversely as the thoughtful content of what's communicated.
As an avid, early user of e-mail, I have made most of the mistakes that I write about. Fortunately, none has been disastrous. Those who are new to the medium, as well as those who consider themselves old hands, would do well to consider the lessons that I've learned and take the time to avoid those pitfalls, however pressing the need may appear for instant reply. The moving mouse writes, and having writ, moves on.
But what was "writ" remains.
For a long time.
Robert D Rachlin is president and senior director of Downs Rachlin & Martin PLLC, the state's largest law firm. He works in the firm's Burlington office. Mr. Rachlin is a Fellow of the American College of Trial Lawyers and a Fellow of the International Society of Barristers. He has been continuously listed in Best Lawyers in America since that publication's first edition.
He can be contacted at (802) 846-8327.
E-mail: rrachlin@drm.com.
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