Keeping up with day-to-day events in the Netscape-Microsoft legal battle may not be a priority for everyone. But most business owners and executives should probably learn one lesson from the whole sordid mess: have a company e-mail policy.
E-mail messages have caused problems for both sides in the case, which began when Netscape accused Microsoft of anti-competitive business practices. Even messages authored by Bill Gates himself have been used to contradict statements he made during the U.S. Justice Department’s investigation.
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Attorney Peter V. Lacouture, who is a partner at Peabody & Brown in Providence, said he has a friend who characterizes e-mail “as a plaintiff’s dream and a defendant’s nightmare.” That’s because, he explained, “a lot of things are said on e-mail that don’t get said in letters.”
Lacouture is chairman of the Rhode Island Bar Association’s technology committee and he authored a December 1996 article on e-mail policies for the Rhode Island Bar Journal.
People who use e-mail tend to be more lax when writing an electronic message, and don’t necessarily exercise the same caution they would when writing a business letter, he said.
Lacouture cited the case of Col. Oliver North, who left some incriminating evidence on his government computer linking him to the Iran-Contra scandal.
“He thought he could hit delete and it would be all gone,” Lacouture explained.
So what rules should business people follow when writing an electronic missive? “I think it’s more common sense than anything else: Would you put this on the company’s letterhead?,” Lacouture said.
If that advice doesn’t work, he said, the author should ask herself, “would I want this to wind up on the front page of the Providence Journal?” Other recommended e-mail policies include establishing that employees cannot use e-mail for illegal purposes, requiring workers to delete unnecessary e-mail within 30 to 60 days, and having a system administrator purge deleted e-mail messages each month, according to Lacouture.
Even those policies won’t necessarily help, he said, because there are multiple ways to track an e-mail. Typically evidence of a deleted e-mail message could be found in a number of places, including both the sender and recipient’s computers and the Internet Service Provider’s system.
Since it has become obvious the electronic remnants of day-to-day business can be used to add substance to lawsuits, an entire specialty field called computer forensics has developed.
Thomas Galligan of Middletown started his own computer forensics firm in 1996 called Electronic Evidence Recovery, Inc. He realized there was “an unmet need” for such services, after a Warwick lawyer called him “out of the blue” and asked him to help retrieve some computer evidence for a case. His services have been requested on a variety of cases since then, including ones involving corporate spying and sexual harassment. Divorce attorneys have also hired him to examine home computers, in cases where one spouse suspects there may be evidence the other spouse squirreled away money on financial software, or there might be evidence of cheating found in deleted e-mail messages.
He makes full image copies of the hard drive and any relevant storage disks for computers involved in a case, typically belonging to the person who filed the complaint and the subject of the complaint. Then he uses forensic software to conduct a keyword search of those images. But since it is relatively easy to alter electronic data, Galligan added, he must document his steps and demonstrate that he has not tampered with the data.
It’s particularly prevalent in sexual harassment cases.
“People are so candid in e-mail. Unfortunately for them that e-mail is preserved,” Galligan said.
In some instance, he has found evidence of pornographic images being stored on a computer in violation of a company’s policy, even when company executives weren’t looking for that evidence.
Just as often he finds evidence of disgruntled employees passing on trade secrets to competing businesses. Though the employee might not reveal top secret design plans or customer lists over e-mail, Galligan said often he can find telltale signs. For instance, he’ll find an e-mail to a competing company stating: “I don’t want to send you this information by e-mail, because it might be monitored.”
Data retention policies are important and companies “should not keep backup tapes in perpetuity, or keep unnecessary e-mail. The reality is that is in direct opposition of the legal department’s mission, which is to retain control,” Galligan said.
“In my mind computers are just glorified filing cabinets, there’s all sorts of information available in them and all that is legally discoverable,” he added.
“More people are becoming aware of electronic documents,” Lacouture explained. But in order to justify the expense of a forensic computer investigation, he said, “it really has to be a big case and (there has to be) some suspicion that the party is destroying evidence.”
A thorough forensic evaluation of a single computer costs about $3,000, according to Galligan.
Though he hopes business people learn from the Microsoft case, Galligan said he doesn’t expect to be looking for new work anytime soon. “My concern is that people might be a little too nonchalant. We’re talking about human nature,” he said.
