Legal Concerns with Email Communications

YouBlog-Emailsr company can’t function without email – it’s an immediate form of communication that no one can live without in today’s business world. Have you thought about what’s in those emails? What concerns should you have as your company runs its day-to-day business?

Emails are governed by the Electronic Communications Privacy Act (ECPA) and the Patriot Act. What the ECPA protected has been eroded by the Patriot Act. Know that emails lose their protected status after 180 days, so anyone could subpoena your emails after that date.

Your company has an email retention policy, right? Remember two critical things about emails:

1) They are permanent and forever – there will always be a record somewhere, whether stored on the sender’s computer, your Internet Service Provider’s (ISP) server, the recipient’s computer and its ISP server.

2) They are always discoverable – if a lawsuit is threatened or pending, you cannot delete any emails related to the matter, even if they are due to be discarded under your email retention policy. A “legal hold” must be distributed to all who are involved in the matter and if you fail to preserve emails related to the subject of the lawsuit, you could be subject to sanctions.

Your company should also have a computer and network usage policy that clearly tells your employees how your company email may and may not be used and grants you the right to monitor their email and computer usage.

Emails may also be used to create a binding contract, partnership or joint venture. If your employees put in writing: “We will be your partner in . . . “; “Let’s work this project jointly”; “We promise to . . .”; or “We accept your offer to . . .” ; etc., a binding contract may have been created, even if it differs from the written document you originally signed with your customer or vendor. It would be nice to point to the integration clause (an integration clause says that the written document signed by the parties is the complete and final agreement which can only be amended through another writing formally executed by the parties) in your contract and argue in court that these words in your employee’s email do not change the original written agreement, but if both parties perform according to the terms set out in the email chain, a “course of conduct” may be established.

Some statements are better left unsaid in your emails! Along with the words above, do not include descriptions of your company’s internal processes. And, educate your employees not to put any personal information in their business emails. This includes more than their home phone # or address, health concerns, legal problems and financial struggles do not belong in business emails. Also, there’s no need to retain non-business emails; they should be immediately deleted.

Instruct your employees to read and reread the initial email as well as the response before hitting send, and make sure the intended recipient is the person in the “To:” or “cc:” box. Delete the email chain below your response unless it is important to the communications AND NEVER forward an email from your lawyer!

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Author Michelle Nickel draws on solid experience as she assists clients from industries including oil and gas, banking, real estate and automotive. Backed by nearly 20 years of business law experience, she is a seasoned counselor with the ability to quickly grasp concepts and allowing her to understand each client’s business goals and objectives. Ms. Nickel uses her rich legal background to serve companies that range from a multinational energy producer to smaller manufacturing and service related firms to sports-related non-profits.

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