The Digital Smoking Gun : Mismanaged E-Mail Poses Serious Risks, Experts Warn
Armed with a court order, electronic data detective John Jessen recently walked into the headquarters of a multibillion-dollar company and took over its computer system. His goal: to find evidence to support an unlawful-dismissal suit against the company.
Using complex techniques to sift through 700,000 corporate electronic mail messages stored on computer tapes, he found the smoking gun his client needed to win in court:
“Dear David, Please destroy the evidence” about the case, said the message. Then came the response: “Acknowledging your request. Evidence destroyed. Aloha, David.”
As the use of computers has soared, a growing number of lawyers have turned to computer experts such as Jessen to search corporate computer systems for information that can buttress their cases.
Companies, whose computer fears once centered on the danger of losing information, must now worry about risks posed by a plethora of data.
“The thing you should lose sleep over is sheer volume of data and its mismanagement,” Jessen says.
Of greatest concern is the rapid growth of e-mail. About 24 million Americans now use it, and experts believe that the nation’s largest companies generated more than 6 billion messages last year, sometimes automatically storing them for months or even years.
“E-mail is a ticking time bomb,” says Michael Patrick, a Palo Alto attorney who is working with his clients to cut those risks. “You have limericks and dirty jokes on these systems--horrible, vicious stuff that can get you nailed for sex harassment.”
In the process of pretrial fact finding known as discovery, an attorney can demand from a company all electronic files having to do with a client’s case. Federal rules introduced in December require companies to hand over a list of all available electronic data and to refrain from deleting any.
Despite some widely publicized cases--racist comments by Los Angeles police officers over an internal e-mail system became evidence in the Rodney King trial--many people remain sloppy about using and saving electronic mail.
“It’s as if people put their brains on hold when they write e-mail,” Jessen says. “It’s a substitute for a phone call, and that’s the danger.”
Jessen worked on behalf of a woman a few years ago who believed she had been fired because she spurned her manager’s sexual advances. Going through the company’s e-mail, Jessen found this: “I don’t care what it takes. Fire the tight-assed bitch.”
When the employer saw the message, says Jessen, he settled right away--for $250,000.
One major problem is that while companies have paper-retention policies and most people make an effort to keep their desks cleared, few have thought about what electronic data to keep or delete.
“People manage their paper to avoid looking like slobs,” Jessen says. “With electronic information, you can keep storing and storing and you don’t see it. It’s out of sight, out of mind.”
Most companies simply dump computer files into backup tapes on a monthly or weekly basis. Such policies can come back to haunt them. Jessen unlocks a room in his Seattle office to reveal steel shelves packed with thousands of computer disks and magnetic tapes in several dozen varieties, which he figures contain about 40 million files and messages.
Jessen is going through the data for a company that was asked to hand over all its electronic files in connection with a contract dispute and wanted to know what they contained before handing them over.
Electronic evidence has proved critical in more than just personnel issues.
When German conglomerate Siemens sued Atlantic Richfield Co. for withholding critical information before selling its solar subsidiary to Siemens, the key piece of evidence in the case was an e-mail message from an Arco executive that said, “As it appears that (Arco’s solar technology) is a pipe dream, let Siemens have the pipe.” Another Arco message talked of hiding questions about the technology and “finessing” the deal.
Jessen isn’t allowed to give the names of his clients, but he was a pioneer in the field when he left his microcomputer company in 1989 to start Electronic Evidence Discovery. Today he has 12 employees and is working on 87 cases.
Using a vast array of software tools, Jessen can penetrate just about any system he encounters. To make sure he can read data in any format, Jessen has collected a small warehouse full of computers, including a rare machine made by Exxon in an early foray by that company into personal computers.
But Jessen says the key to collecting legal evidence is understanding the way computer systems organize and store data. Companies often collect and store raw data for accounting and database programs that senior executives don’t even know exists, he says.
Jessen has found lawyers particularly naive about technology. One lawyer boasted about the company’s computer security system and challenged Jessen to find anything damaging. He watched in horror as Jessen dove into the system and pulled up old love notes from the lawyer to a former office manager.
In another case, a client had signed a contract he assumed contained a graph that had been discussed in early talks. The lawyer who drew up the contract insisted the issue was never raised. Jessen went through the attorneys’ computer and found 27 drafts of the contract in dispute. The first eight versions of the contract included the clause in question.
As the best defense, experts recommend a regular program of weeding out unnecessary files. Joan Feldman, who recently quit working for Jessen to start her own company, Computer Forensics, was taken aback when a client’s systems manager boasted that his new computer system could store 149 years’ worth of electronic data.
“We told him he should have (e-mail) erased every two weeks,” Feldman says. “It’s a tape-recorded party line.”
Just erasing e-mail may not solve the problem. Employees often download or forward messages to other people in the system. Experts can sometimes even recover information from a hard drive that has been erased, re-formatted and recorded over.
“You have to be a really determined person, a fanatic, to eliminate all the copies of your files,” Feldman says.
If a company has a regular program of erasing e-mail, it is less likely to face the problem of explaining itself in court when it deletes information that later proves to be evidence in court.
One company threw away its old backup tapes and insisted it simply didn’t back up its computer files, even though it had the expensive equipment necessary to do so. Jessen went into the company’s accounting program and found receipts showing the company had been regularly purchasing backup tapes and was obviously lying.
E-Mail Tips
Here are some dos and don’ts of electronic mail:
* Establish an e-mail policy that urges users to exercise the same restraint in writing e-mail messages that they do when writing letters or memos.
Employees should be told that “anything you put in this computer can and will be used against you in a court of law,” John Jessen says.
* The company should implement an aggressive document retention policy that limits the number of saved e-mail messages both on the company’s central computers and in personal computers.
* Warn employees to be careful about forwarding messages to employees or outsiders.
A Tidal Wave of E-Mail
The volume of electronic mail, both within companies and across the global network known as the Internet, has skyrocketed as more and more users have discovered the speed, ease and low cost of this form of communication. Estimated messages on the Internet, in millions:
Nov., 1992: 418.6
Feb., 1994: 837.3
