E-Mail Is Exhibit A

Before you click that send" button, ask yourself these questions: Are you able to defend the statements made in that E-mail? Are you willing to do so under oath in court?

E-mail is Exhibit A in many of today's most high-profile legal investigations and court cases. It's being used in cases ranging from drug company Merck's battle over the painkiller Vioxx to Jack Abramoff's Indian lobbying scandal to the investigation of former vice presidential aide I. Lewis Libby's involvement in leaked information about CIA operative Valerie Plame Wilson.

Despite so many highly publicized legal cases involving E-mail, only 35% of companies have E-mail retention policies, and 37% of employees say they don't know which messages should be retained and which purged, according to surveys conducted by the American Management Association and the ePolicy Institute, a training and consulting firm.

"Most companies are sitting ducks," says Nancy Flynn, founder and executive director of the ePolicy Institute. "They don't realize that E-mail is the electronic equivalent of DNA evidence."

Bill Gates wasn't thinking about that when he sent messages to Microsoft executives in 1996 discussing the need for the company to increase its share of the Web browser market. Two years later, he had to explain his written statements under oath when the federal government accused the company of violating antitrust laws when it crushed Netscape in the Web browser market.

Watching Gates squirm--and grab headlines--in a court case involving E-mail should have been fair warning to all business executives and other high-ranking officials to exercise greater caution when writing E-mails.

Failure to get a handle on E-mail--and soon instant messages and blogs and other forms of business communications--can cost companies money and their reputations. Morgan Stanley learned that lesson the hard way. It's been hit with millions of dollars in Securities and Exchange Commission and court fines as well as legal judgments for violating E-mail retention rules. And it's been embarrassed by archived mail introduced in a wrongful termination case that showed, among other things, its CTO hitting up vendors for tickets to sporting events. A host of companies have seen internal E-mail used in a variety of legal actions ranging from sexual harassment to software piracy to data theft. Some have been hit with fines for failing to produce E-mail in court cases.

Electronic Fingerprints
Many industries have regulations such as the Health Insurance Portability and Accountability Act in health care, and all public companies are governed by Sarbanes-Oxley. These and other rules require companies to retain and archive E-mail for three to seven years. Even in industries that don't have E-mail retention rules, companies involved in legal disputes can expect to get subpoenas for E-mail.

"The first thing my clients want to see now is E-mail and E-mail attachments," says Eric Blank, managing attorney of law firm Blank Law & Technology, which specializes in electronic evidence detection. "Sometimes that's the only thing they search."

Legal battles involving E-mail can be costly. A good paralegal or attorney can review about four documents per minute looking for evidence, Blank says. If a company has to review millions of pages of E-mail, legal fees of $300 an hour can quickly add up to hundreds of thousands of dollars.

The average company creates at least a million messages each day, Forrester Research estimates. But technology tools and services can help companies monitor and manage that E-mail, including specialized archiving, retrieval, and discovery software. Still, the sheer volume of messages will continue to prove challenging.

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