© The Medical-Legal News, 2007
• The Gist: Law firms should have policies about proper e-mail procedures and archival. Subcontractors to attorneys should know the firms’ rules.
By Kathleen Sesco, RN, BSN, MHA
Early versions of electronic mail began around 1972. In the 1990s, e-mail consisted of text only and its content mostly related to college and non-business communications.
Today, e-mail has expanded to include not only text messages but also documents, voice, fax, video, audio and graphic transmission. The ability to respond immediately bypasses the time and expense of traditional paper and post letters.
This convenience carries with it risk. Businesses use e-mail as a daily tool to engage in a variety of activities. Companies can create policies and procedures, circulate documents and pass information to clients or a court electronically. In many states any document filed with the court, either district or federal, appears electronically via an on-line docketing system. The federal court system and some regional district court systems even required pleadings in electronic format.
However, sending a message to anyone has the potential for serious implications including breach of confidence, defamation and harassment and hacking. Once this information leaves the sender’s computer, efforts must be made to ensure its security. Firewalls (to protect a company’s internal system), virus scanning software and encryption to protect the content to the message offer some protection against potential security breaches.
Electronic and digital evidence of business transactions may now be subject to the same legal requirements, restrictions and standards as records created in paper form. The failure to document electronic mail was addressed by the 1970 Amendment to Rule 34 of the Federal Rules of Civil Procedure, which required lists of all relevant paper and electronic documents be transferred from one attorney to another. The existence of e-mail documentation concerning the litigation in print, on the hard drive, on the network or on back-up tapes, even after the e-mail was alleged to be deleted, is subject to discovery. Computer forensics can retrieve deleted material from the computer.
There have been cases involving brand name prescription drug Anti- Trust Litigation (1995 U.S. Dist, LEXIS 8218 [N.D. Ill June 13, 1995]) in which the court has allowed the retrieval and review of e-mail stored on backup tapes by the plaintiff.
Public domain e-mail such as yahoo.com, hotmail.com or Google G-mail may be subject to the Federal Rules of Civil Procedure and also to the Freedom of Information Act (FOIA) and the Personal Privacy Protection Law.
The FOIA grants the right of access to all records not excluded by specific exemption. The Personal Privacy protection law requires that agencies identify and protect all records that contain personal information. Under the 4th Amendment, most case law has established that private employees in the workplace do not have a reasonable expectation of privacy regarding electronic communications. E-mail sent or received over a firm or company computer is regarded as firm or company property and employees should have no expectation of privacy in that situation. Cases involving criminal and illegal activity using the workplace computer are still evolving.
FBI, Homeland Security and other intelligence agencies have increased their monitoring of electronic transmissions. Software can screen e-mail contents with ease. ISP and e-mail service providers may also compromise e-mail privacy by forwarding information to marketing agencies.
Law firms endeavor to protect their own information and that of their clients. Many firms have established strict e-mail guidelines to protect the integrity of their network. Firms and companies may use encryption, which translates e-mail contents into an incomprehensible text able to be decrypted only by the recipient.
Responsibility of the legal subcontractor
Anyone hired by a law firm, such as an LNC or expert, needs to be aware of any policies in communicating with the attorney that governors the use of e-mail.
Generally, e-mail communications to an attorney should not be made from public e-mail services, and there should be no downloading of unauthorized programs or other fraudulent activities — and never share your password with anyone.
Recommendations for the business realm:
• Remember that what you write in e-mail can be made public in much the same way as a paper postcard or letter.
• Remember the confidentially of the case and attorney, so avoid using names with social security numbers and dates of birth, or other identification numbers that may be stolen and misused.
• Do not send chain letters to firms you do business with, even if you have personal friends there.
• Do not use abusive or defamatory statements. Remember, e-mails can be forwarded without your knowledge or permission.
• When discussing a third party, do not put anything in an e-mail that you are not comfortable telling the party face-to-face.
• Do not disclose your own personal information, to include social security numbers, dates of birth, credit and bank information, etc.
• Read the e-mail closely and be sure to use the spell-check and grammar-checking features.
• If in doubt of the source of the e-mail, verify the sender by another means of communication, such as by telephone, or by sending an entirely new message separate from the original.
E-mail is a method of communication and its content should reflect the values and ethics of the sender. The professionalism you exhibit on the telephone, in a paper letter or in person should be equal to what you exhibit in your electronic correspondence. •
Kathleen Sesco, RN, BSN, MHA, is a legal nurse consultant at Howell & O’Neal in Jacksonville, Fla., email@example.com.
• The Houston Chronicle reported in June that The 6th Circuit Court of Appeals ruled that a lower court was correct in finding that stored e-mails should be given the same protection under the 4th Amendment as sealed letters. Internet privacy advocates have called the ruling a landmark case.