TALLAHASSEE, FL – RumbergerKirk partner Leonard Dietzen is no stranger to issues pertaining to email liability. Co-developer of an online email training course called Avoiding Email Pitfalls (available at EmailPitfalls.com), Dietzen knows the high-tech concerns companies of all sizes face  – and the steps public and private organizations alike must take to limit their liability. For its January 2008 issue, Governing Magazine turned to the Florida attorney for his advice on incorporating sound email retention policies.

Government agencies are among a growing number of organizations taking steps to protect them by maintaining accurate email records.  In her article, entitled “Delete at Your Own Risk,” Governing reporter Ellen Perlman examined steps government entities are taking to ensure their protection.

"You wouldn’t believe how many mistakes are made and just how obvious this is," Dietzen is quoted as saying in the article. "People finally are waking up."

The article offers the latest look at a trend and topic of high concern to organizations across the country.

To read the article in its entirety, go to Governing.com or scroll down this page.

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RumbergerKirk provides litigation and counseling services in a wide range of civil practice areas including products liability, commercial litigation, intellectual property, environmental, employment, insurance, professional liability, health care and administrative law. Offices are located in Orlando, Tampa, Miami, Tallahassee and Birmingham, Alabama.

Delete at Your Own Risk

Governments need a system for managing their mountains of e-mail. Very few have one.

By Ellen Perlman
Governing Magazine
January 2008

For several months last fall, the St. Louis media had a field day with Missouri Governor Matt Blunt’s office for doing the equivalent of crumpling up important office correspondence and tossing it away. Employees weren’t using a wastebasket, though. They were tossing out messages by clicking "delete" on their computers. Staff members insisted there was no written policy in their office on saving and deleting the e-mails. They said they routinely erased the messages because they didn’t view them as part of the public record.

Most other state offices were quick to disassociate themselves from this approach. The attorney general, the secretary of state and the auditor all announced that, unlike the governor, they treated e-mails as public records and retained them accordingly. Finally, in November, Blunt put an end to the controversy by announcing his own stringent new policy. A "permanent" e-mail retention system would be created, and employees would no longer be able to make case-by-case decisions on what to save. The governor gave his Office of Administration the task of developing technical systems to permanently save every single state government e-mail. He didn’t say how much that would cost or how much additional storage would be needed.

Missouri’s is not the only government that has been stumbling over vague or non-existent e-mail policy. Millions of state and local employees in jurisdictions all over the country correspond by e-mail every day without giving much thought to what should happen to the product. They may come to regret that behavior. Not only are records, and history, being lost, but many government lawsuits now turn on what is buried in old e-mail messages. Government policy simply has not kept up with the evolving technology. "At the moment," according to Charles Davis, of the National Freedom of Information Coalition, "everyone is looking up and saying, ‘Maybe we ought to be keeping this stuff.’" But few have come up with clear rules governing where and how to keep it.

Some elected leaders are still trying to hold the line against long-term storage, but generally they aren’t succeeding. Last August, for example, Washington, D.C., Mayor Adrian Fenty issued an executive order directing employees to purge most e-mails after six months. Three months later, after resistance from the city council, he withdrew the order. The council felt six months wasn’t long enough to protect critical information and provide evidence against misconduct. "With the punch of a button," one council member said, "many important, vital public records would have been lost."

In general, though, it’s proving difficult for archivists and other information technology specialists to get across the message that government documents sent via e-mail can’t be viewed as ethereal missives. E-mail is simply another way to distribute a public record. As time goes on, courts are likely to hold governments increasingly responsible for organizing and saving those records in exactly the way they would save paper records. Logically, that would require them to set policies for computer use and offer training on how to properly handle and retain e-mails. Few do.

The whole problem is complicated by the fact that government workers use their office computers for a huge variety of purposes, many of them official but many personal or even questionable. Employees in state and local government use e-mail and the Internet to do their taxes, run eBay businesses, upload to YouTube and plan lunches and other personal events. If a government tolerates those uses, it seems a bit excessive to demand that every lunch invitation be saved and stored in perpetuity for public inspection.

Some states are beginning to deal with the problem by creating clearer rules for what employees can and can’t do with their computers on office time. Washington State has issued a formal directive stating that computers are for state business. Employees may use them for personal needs if they are not political or commercial. But the state has a right to monitor and preserve any message that is transmitted.

Texas has chosen to draw distinctions between categories of e-mail, carefully delineated in a "records retention schedule" one- and-a-half inches thick. "Transitory" e-mails deemed irrelevant to the conduct of government can be destroyed after a week. Others, including any sent to a constituent service office, are supposed to be kept "in perpetuity."

Critics say this system is nothing but a giant loophole. "If it’s the governor," says Charles Davis, "I would imagine all sorts of things would become transitory. That’s just a black hole." Davis argues that in many cases, no one can be sure what records are important until long after they are created. The daily comings and goings documented by e-mail can be "terribly" important, he warns, if a scandal erupts involving a senior official. "Look, he’s hanging out with all these lobbyists," Davis offers as an example. "How do we know that? The ‘transitory’ e-mails."

In other places, elected leaders are devising ways to escape permanent retention of e-mails by sending them through private accounts, thus making it difficult or impossible even to find them. The chief aide to one Phoenix councilwoman transmitted a memo to staff members telling them to send e-mails on controversial issues to an AOL account rather than to the city’s e-mail system. City policy in Phoenix "encourages" employees to do city business on public accounts, rather than private ones, but does not require it. Hence, the council members were not breaking any rules. When a newspaper reporter asked for e-mails from seven members, including those sent from personal addresses, the members agreed to provide them. But a city spokesman concedes there was no way to know if all of the government-related e-mails from personal accounts were produced.

Another way for employees to avoid having their e-mail land on government servers is to send it via their PDAs by a method called "pinning." Pinning allows two people to send messages back and forth directly to each other’s PDAs, without going through the government computer network. Few departments have policies prohibiting pinning, if they even know what it is. Information can be created and stored on PDAs, flash drives, hard drives and other pieces of equipment, and never reach the government system for storage.

One of the reasons governments aren’t managing e-mail well is that it doesn’t take up any physical space. If the amount of information now being clicked back and forth were still on paper, it would bulge out of filing cabinets. Agencies couldn’t let the piles stack too high. With the advent of electronic storage and search capability, there’s a strong inclination on the part of many governments not to do much of anything. If they need something, they assume they can find it. If someone deletes it, they aren’t inclined to worry. "We’re so busy generating and consuming and digesting information," says Adam Jansen, the deputy archivist in Washington State, "there’s no time left in the day to manage it."

PRESSURE FROM THE FEDS

In fact, though, if there was any doubt about the importance of public e-mail management, it should have disappeared in December 2006, with a change in the Federal Rules of Civil Procedure. Under those rules, state and local governments that become litigants in a federal case will have to produce any electronic information considered relevant to the case. If they can’t easily retrieve e-mails because they haven’t established an efficient way to store them, it’s going to cost a lot in staff time. Employees might have to review millions of e-mails to find which ones deal with the plaintiff. If they’ve deleted crucial e-mails that are public record, that creates other issues.

To guard against these problems, Washington State created a consolidated system for use in the discovery stage of lawsuits. Last September, the National Association of State Chief Information Officers issued its own report on preparing systems for e-discovery.
Many of these federal cases involve the use of government e-mail by one employee to harass another. For instance, an e-mail of a racist nature that is sent to everyone in an organization or passed along electronically. "Nasty, nasty jokes," says Leonard Dietzen, a Tallahassee lawyer who represents governments in harassment cases. "They seem funny at the time. A year from now, when they’re in court, they’re not. It embarrasses us at trial and in the media."

Before e-mail, it was hard to prove that an agency culture was oppressive. Plaintiffs had to show it through the word of other employees. Now it is set in digital stone. Lawyers can request e-mails with the plaintiff’s name on them, whether in the body of the e-mail or in the "to," "from" or "cc" lines. Or ask for everything on the hard drive.
It might be tempting to conclude that the way to deal with this problem is simply to establish a policy of rapid deletion, thus eliminating the evidence. In fact, though, stored messages are as important to the defense in an employee-related case as they are to the plaintiff. They help governments prepare an argument and potentially save thousands of dollars in claims and back pay. If an employee sues, claiming sexual harassment by a superior, but investigators discover e-mails revealing he or she welcomed the advances, the government is in a stronger position in court.

For that reason, lawyers and archivists recommend that government agencies refrain from reassigning computers immediately after an employee is terminated. Instead, they should cull the information from that computer before a new user erases documents the government could use in court should it need to. There’s no telling when it might need to. Governments can be sued for years after an event. "You wouldn’t believe how many mistakes are made and just how obvious this is," says Dietzen. "People finally are waking up."