Publications
E-mail And The Loss Of Plausible Deniability
With e-mail becoming a universal and routine means of business communication among business executives, this long-standing business problem has become infinitely more threatening.
A curious psychology has evolved around the use of e-mail. Executives who would never allow a letter or a memo to escape their desk with typos or colloquialisms think nothing about sending e-mail messages that are replete with misspellings, no capitalization and sideways happy faces made from colons and parentheses. Otherwise staid business people, who would never commit an off-color remark to writing, think nothing about forwarding via e-mail the latest risque joke to 50 of their closest friends. The "logic" seems to be that a letter or memo is concrete, and it can end up in a file that can come back to haunt you. E-mails, on the other hand, are written in vapor, and are not nearly as serious or significant. Of course, this could be no less true. E-mails bear the same legal weight as any other writing. They are much more difficult to destroy than paper - networks are often set up to keep back up copies of e-mails indefinitely, and even when deleted they remain in a recoverable form for a substantial time. And the ease with which e-mails can be copied and forwarded, in geometric proportions, makes them much more dangerous than a paper document could ever be.
But the worst part is the fact that e-mail is so easy and instantaneous. Before e-mail, in order for business people to communicate in writing, they would usually dictate the document, a secretary would type it, they would get it and revise it, and it would eventually be finalized. There would be a built-in delay and review that took the impulse and emotion out of the process, and that injected a "do I really want to do this" opportunity for reconsideration and deliberation (often generating a call to counsel). True off-the-cuff communications took place orally, over the telephone or in person. But with e-mail, there is a much greater propensity to simply write what you are thinking at the time, sort of like a written telephone call. But there is, of course, a monumentally crucial difference between e-mail and oral communications: with the latter, there is no written record that comes back to haunt you; with e-mail, however, there is no "I never said that" or "you must have misunderstood me" opportunity for retrenchment. It is all right there, in bold relief, to be introduced as Exhibit "A" during the trial. You lose what the Nixonians used to call "plausible deniability".
Now combine all that with some recent Federal legislation, such as the Electronic Signatures In Global And National Commerce Act (known by the acronym E-Sign, one of the best legislative acronyms yet). E-Sign says that "a signature, contract, or other record relating to such transaction may not be denied legal effect, validity or enforceability solely because it is in electronic form . . .". In other words, and as if there were any doubt about this, a contract formed via e-mail is just as valid as a contract written on parchment and sealed in wax.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
