Alex Du is a lawyer at the Toronto law firm of McMillan Binch and a member of the firm’s KNOWlaw* Group.

Privacy is the cause celebre of the Internet these days. Most of us expect our e-mail messages to be private, confidential and secure from prying eyes. What you may not realize is that even if future advances are made in technology to ensure the utmost security and privacy of your e-mail, under certain circumstances, no matter how secure and encrypted those ‘private’ e-mail messages are, they may become quite public.

E-mail as evidence

Most e-mail users probably do not consider that their messages may, some time in the future, be introduced as evidence in litigation. Even though you may have intended your e-mail message to be private and confidential, once the litigation process begins, subject to any privilege, you will be obligated by the Rules of Civil Procedure (Ontario) to disclose all documents (including e-mail messages) relating to any matter in issue in the action that are or have been in your possession, control or power.

The main policy reasons behind producing documents such as e-mail messages are to: (1) give the other party an opportunity to obtain full disclosure of the case you are trying to make, or vice versa, prior to trial, (2) narrow the disputed factual and legal issues in the case by establishing mutually agreed upon facts and admissions, and (3) to encourage settlement.

A hard lesson

One of the most interesting and important trials in the history of the computer industry, Department of Justice v. Microsoft, is currently in litigation. Central to the u.s. government’s case against Microsoft are several ‘snippets’ of internal e-mail messages which they have introduced as evidence to contradict the prior sworn testimony of Bill Gates himself, or as proof of a pattern of predatory behavior by the behemoth software company.

It is doubtful that such e-mail snippets alone will be sufficient to show that Microsoft broke u.s. anti-trust laws. However, the public disclosure of this material has not only been embarrassing to Microsoft executives, but also very prejudicial to Microsoft.

With so many of its e-mail messages now in public circulation, and with the other evidence introduced in the case to date, the public now has a much larger window into Microsoft’s corporate culture, attitudes, business style and psyche. Even if Microsoft wins, it will be difficult for it to continue carrying on business in the same manner it did before the trial.

If Microsoft was careless or inattentive to its e-mail policies in the past, it is surely not alone. E-mail, it has been argued, should be treated as an informal discussion between sender and recipient. It should not be treated as an official business document or thought of in the same way as an internal company memo. It is a communication that is intended for the recipient similar to a telephone call. This may have been doubtlessly the prevailing attitude of most e-mail users prior to the commencement of the Microsoft anti-trust suit.

Unfortunately for Microsoft, as long as privilege has not been attached to an e-mail message and it is relevant to any matter at issue in the proceedings, e-mail messages, generally, will be admissible as evidence in litigation.

How to protect yourself

You should be concerned that e-mail messages written by employees or yourself can be used against you in litigation, but don’t forget that they can be used in your favor as well. With this in mind, the best way to protect yourself is to ensure that you have a well-written e-mail policy in place to help minimize the risk to you and your company. Make sure that all your employees are aware of this policy and that any e-mail message they write can be used as evidence either for or against you.

While e-mail policies usually attempt to address a variety of concerns, you should consider the following when drafting or reviewing an e-mail policy.

* Not all ghosts are bad: The embarrassment suffered by Gates and Microsoft has sensationalized the risk that e-mail messages can come back to haunt you. Lost in all of this commotion is the consideration that an e-mail message can also save you. For example, e-mail messages may be helpful to you in defending allegations of misrepresentation, in confirming that the other party received certain material information, in proving an agreed upon price or business decision, or in proving prior art with respect to a patent.

It is too difficult to predict or anticipate what kind of litigation you or your company may be involved in. If you are unsure or you know that you don’t want a particular e-mail message coming back to haunt you, then you probably shouldn’t use e-mail to communicate that idea – pick up the phone.

* Deletion policy: Be wary of adopting a practice of deleting e-mail messages quickly or without first determining if they should be archived. If your company is a regulated entity, check with your corporate secretary or legal counsel to ensure that there are no statutory requirements that would require you to keep an archive of your e-mail messages.

You may want to instruct your e-mail administrator to schedule regular deletions of read messages in user in-boxes and backups. (For example, every six months for e-mail backups and 30 days for in-box read messages). Prior to any such deletion, a company-wide reminder should be sent to ensure that users go through their mail and determine whether it should be archived, either electronically or by print. This way, you don’t inadvertently delete useful and important messages.

* Be careful what you write: You should stress to employees to take care in how they use e-mail. They should avoid being glib, flippant, profane, imprecise or making offhand remarks or comments. E-mail messages run the risk of being misinterpreted by the reader and it is not farfetched to imagine allegations of defamation, harassment or discrimination arising from a misinterpreted e-mail.

When drafting e-mail messages, try to think of them as internal memoranda or official corporate or business communications, as the case may be. You should try to be a little more formal if you are giving advice, reporting on a meeting, conducting business, collaborating on a project or negotiating a deal, and above all read before you click and not just for the content of an e-mail but also for whom it is addressed.

Of course, there are significant e-mail-related risks that will be difficult to guard against. There will always be the disgruntled employee who fires off an e-mail containing confidential payroll information to other employees; or the employee who inadvertently sends confidential information to a competitor because they accidentally clicked on ‘reply to all recipients.’

No e-mail policy can eliminate all risks associated with using e-mail, but a bit of planning will certainly help you avoid the sort of embarrassment felt by Mr. Gates and company. Then again, you should be so lucky that your business gets big enough to warrant an anti-trust investigation.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice in any particular situation.)