Some years ago, when e-mail and other kinds of electronic communications began to catch fire, observers proclaimed the end of the era when companies were buried in stacks of paper and made slaves to their filing cabinets. Yet while the advent of e-mail might have helped save trees, has it really liberated companies from the drudgery of record keeping? Has it really improved communication? From a litigation standpoint, at least, the answer would have to be “no.”

E-mail has led to a culture of more frequent, more hurried, more cryptic and less formal communication. E-mail thus tends to foster ambiguity, and in turn litigation. Whereas deals used to be sealed by detailed letters or formalized contracts, the pace of today’s “e-powered” business world demands more immediate results. Increasingly, agreements are made and modified in bits and pieces, cobbled together in lengthy e-mail chains consisting of disconnected bursts of words. And businesspeople are increasingly turning to the courts to resolve the ambiguous fruits of such e-negotiations.
Then there is the problem of document management. Today, lawsuits are won and lost based upon the contents of e-mails and the ability of the litigants to find them when they need them. While it can be easier to locate particular documents sorted electronically, at some point the relevant documents have to be read by someone. Sifting through the overwhelming volume of communications today raises the ante in the event of litigation.

Indeed, the primary expense of maintaining or defending a lawsuit is often the task of sorting through e-mails and other electronically-stored documents to determine which ones are relevant to the case. Thus, the convenience of e-mail brings with it the necessity of establishing and following a comprehensive electronic document management policy.

Such a policy generally tells companies what they should keep, what they can get rid of, and how to archive documents if they need to retrieve them in the event of a lawsuit. If a business without such a system winds up in litigation, it can cost a fortune. And many companies fail to appreciate the need to employ an electronic records protocol until after they have been sued once.
Large mainland law firms today often employ teams of lawyers and paralegals whose primary function is to sit in front of a computer screen reviewing e-mail and other electronic documents for litigation. Many companies – particularly smaller ones – lack a system for organizing electronic documents which could streamline the task. A company that fails to manage its e-mail often finds it cheaper to settle a case than to litigate, because the cost of document production outweighs the cost of settling.

E-mail and other “instant” means of communication are outpacing the law as well as standard business practices. The savvy businessperson will come to grips with the new technologies and take proactive steps to appropriately organize e-mail and regulate its use.

– R. Todd Thompson is a partner in the law firm of Mair, Mair, Spade &Thompson. He can be reached at [email protected] This information is not intended as a substitute for consultation with your own legal counsel.