Those e-mail, voice mail messages
could come back to haunt you
One of the more interesting aspects of the trial of the Department of Justice’s antitrust case against Microsoft was the way in which the government was able to recover thousands of Microsoft’s internal e-mail messages and use those recorded messages to embarrass and ultimately defeat Microsoft.
In this era of high technology communication, more and more communication is taking place through e-mail and voice mail. Unfortunately, many of us are frequently careless in our use of those methods of communication.
Following are four good rules to follow when using e-mail and voice mail and the reasons behind them:
1. Treat your e-mail and voice mail messages as if they were going out on your company letterhead.
For whatever reasons, e-mail and voice mail are conversational — people write e-mail and leave voice mail as if they were having a face-to-face conversation. Many people send e-mail full of misspellings, with improper punctuation and capitalization, without editing or reviewing what they have written. Similarly, many people leave long, rambling, and sometimes emotional voice mail messages.
The first problem with that approach is that sloppy communication leaves a sloppy impression. Sloppiness also can lead to unnecessary ambiguity and confusion, so the person leaving the message may end up disappointed by recipient’s misunderstanding of the intended message.
Furthermore, unlike ordinary conversations, e-mail and voice mail messages create a permanent record, as Microsoft found out the hard way. Anyone communicating sloppily by e-mail or voice mail can be embarrassed when confronted with the permanent record of what he or she has said.
The best rule to follow is simple: If you are sending a communication that is or can be permanently recorded, write or speak your message as if you were sending it out on your company letterhead.
2. Keep copies of e-mail and do not use voice mail to communicate critical information.
You keep copies of your important letters, don’t you? But do you keep copies of your e-mail messages? If you are like most people, probably not.
That can be a critical failure in the event you later need to establish that you communicated that vital information to your customer or supplier. How will you prove that you provided those key details if a dispute arises? If you did not print out your e-mail, you may still be able to have it retrieved, but you are far better off if a copy is already in your file.
For similar reasons, do not use voice mail to communicate critical information. The only record of a voice mail is in the hands of the recipient, so the person leaving the voice mail has no way of proving what information has been communicated. In addition, the risk that the recipient will hit the delete button before getting to the end of a long voice mail message (with the really critical information at the end of the message, of course) is simply too great.
Use voice mail as a means of keeping touch or asking for a call back, but do not rely on it as a method of communicating substantive information.
Keeping copies of your e-mail in your permanent file and avoiding voice mail for communicating substantive information will also help prevent you from saying something later that is inconsistent with your earlier communications. In turn, being consistent in your communications will help avoid misunderstanding and confusion, and even litigation.
3. Remember that e-mail and voice mail work in mysterious ways.
Any communication can be passed on by the recipient. But how likely is it that the recipient of a letter will make 1,000 copies and forward it to everyone in his or her company almost instantaneously? Not likely. With e-mail, that can happen with the push of a button. Also, keep in mind that many e-mail systems forward not just the immediate message, but any earlier messages in the same sequence, so that an e-mail message can be forwarded inadvertently much more easily than a letter or fax.
Another phenomenon to keep in mind is that while we all know that e-mail and voice mail can be recorded and retrieved, we tend to forget that. Out of sight may be out of mind, but – as Microsoft discovered – that does not mean out of existence. Data retrieval companies are only too glad to hire themselves out to dig up old e-mail messages that the senders thought were long gone, usually in the context of litigation. Many of Monica Lewinsky’s more embarrassing e-mail messages were recovered in just this way.
Depending on the state, recording conversations without one or more participants’ knowledge may be illegal. In Wisconsin, recording a conversation is legal so long as at least one participant is aware of and consents to the recording. But that is not the law everywhere — as Linda Tripp found out. However, because the person leaving a voice mail is creating a recording voluntarily and knowingly, a voice mail message is fair game for use in any court of law. If you leave an angry, emotional message threatening to “get” a competitor or a disgruntled employee, you could well find yourself listening to that message being played back to a jury in a courtroom.
4. Do not presume confidentiality
It is worth repeating: e-mail and voice mail are not confidential. Not only the intended recipient, but others may be able to get hold of your messages and trace them back to you as well. Think of how quickly the “I Love You” virus was tracked to a specific apartment in the Philippines. Most of the time most third parties will probably have difficulty accessing your electronic communications. However, if the information you want to convey is truly confidential and worthy of greater than ordinary care, think twice before sending that information electronically or by voice mail.
Benjamin R. Norris is a partner in the Phoenix office of the Milwaukee law firm of Quarles & Brady. His practice focuses on commercial litigation, bankruptcy and creditors rights and tax litigation.
November 9, 2001 Small Business Times, Milwaukee
