Big Trouble in the Big Easy

Hurricane Katrina was the storm of the century down in the Ninth Ward, but in downtown New Orleans, a different kind of storm is brewing. Just in time for the February 24th Mardi Gras celebration, the party in City Hall has come to an abrupt halt, and the Krewe of Nagin has brought Trouble to River City. 

The city’s records retention policy and state public records law requires that all email and public records must be preserved. In fact, under the "enforcement" section of the Nagin administration's recommendations for preserving e-mail, the city's technology office suggested that "any employee found to have violated this policy might be subject to disciplinary action, up to and including termination of employment." Moreover, violations of the state law requiring the emails to be kept for three years is punishable by as long as five years in prison and fines up to $5,000.

Can you say “Uh-oh?” On February 19, 2009, Frank Donze reported in the New Orleans Times-Picayune, http://www.nola.com/news/index.ssf/2009/02/email_deletions_violate_nagins.html, that the Mayor’s office has disregarded its own policy, by deleting six months of the Mayor’s own emails, totaling over 1,500. The Nagin administration's only comment came from the city attorney, Penya Moses-Fields, who blamed the destruction of e-mail on "server storage and capacity problems, which have temporarily limited the city's capabilities to retain employee e-mails for any extended period of time."

Huh? Can’t Mayor Nagin or someone on his staff simply purchase a flash drive? A former city official, Tommy Milliner, compared the Nagin administration's assertion that lack of space is the reason for the deletions to saying, "you have files and then you leave them out in the rain because you think you can't afford a storage room to put them in." Milliner wasn’t the only one scratching his head; local technology and legal professionals were also puzzled by the argument that limited storage space was the underlying issue.

"Lack of storage is an easily solvable problem," said Stephen Segari, a senior developer at Carrollton Technology Partners, a New Orleans technology firm. "It's not an issue of money or time. If you say you don't have space, it's an excuse, not a reason." He also said that for approximately $100, he could install a 1-terabyte hard drive that is capable of storing more than 107 million typical e-mail messages. Similarly, Loyola professor Dane Ciolino said, "This mayor has often touted his administration as being very tech-savvy…and yet, what has happened in this case is inexcusable. The basic, fundamental thing you do is to make sure your data is secure and backed up."

The moral of the story is that data storage is cheap and easy. Make sure that your storage solution is adequate for all corporate records, including email.  Otherwise, you could face a Katrina sized flood of trouble when your records are examined more closely than a strand of mardi gras beads on Bourbon Street.

 

10 Things You Should Never Put in an E-mail

Want a hint as to the types of phrases found in emails that are going to catch the eye of a lawyer looking for a smoking gun in a lawsuit?

Roger Mathus of Death by Email quotes Elizabeth Charnock, CEO of Cataphora, on 10 things you should probably never write in an e-mail:

  1. “I could get into trouble for telling you this, but…”
  2. “Delete this email immediately.”
  3. “I really shouldn’t put this in writing.”
  4. “Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”
  5. “She/He/They will never find out.”
  6. “We’re going to do this differently than normal.”
  7. “I don’t think I am supposed to know this, but…”
  8. “I don’t want to discuss this in e-mail. Please give me a call.”
  9. “Don’t ask. You don’t want to know.”
  10. “Is this actually legal?”

Ms. Charnock developed her "top ten list" based on e-mails and documents her company has analyzed for clients.

After reviewing Ms. Charnock's list, Matus advises, "If you find yourself typing one of these phrases, perhaps you should delete the entire e-mail."  In other words, when in doubt, think before you press that "send" button.

Do you have other favorites?  Feel free to share them with us in the Comments.

Obama To Give Up His Blackberry. Should You?

The New York Times has reported that President-elect Barack Obama will likely give up his Blackberry when he takes office in January.  According to the Times, Mr. Obama - like legions of other professionals - is all but addicted to his Blackberry.  Yet he is giving his up.  So should you be thinking about trading yours in too?  Going Luddite, if you will? 

You may be stretching your thumbs right now, getting ready to send a lengthy and exasperated comment from your Blackberry.  So I'll just start out by saying the short answer is no, you don't need to give up your Blackberry; and no one will try to take it from you.  However, the Times article about Mr. Obama and his reluctant parting of ways with his Blackberry reminds us that we all need to be wary of how we use ours. 

As the Times article explains, Mr. Obama will likely give up his Blackberry for two reasons.  The first is security; anything can be hacked.  The second is "the Presidential Records Act, which puts his correspondence in the official record and ultimately up for public review, and the threat of subpoenas."  So, '[f]or all the perquisites and power afforded the president, the chief executive of the United States is essentially deprived by law and by culture of some of the very tools that other chief executives depend on to survive and to thrive." 

Now, we everyday professionals - who really are that dependent upon our Blackberrys - do not have to worry about the Presidential Records Act subjecting all of our emails to public scrutiny.  That is true.  However, the data on everyone's Blackberry is subject to discovery in civil litigation and regulatory and criminal investigations.  So many seem to forget this, or just don't think about it.  These days, the smoking guns that win and lose cases, or make them for the government, are usually found in electronic correspondence.  Email is just such a casual means of communicating; particularly when sent on a Blackberry.  Most folks aren't thinking about the fact that they are creating a record when they fire off an email.  And if you think lawyers can't get the information you have on your Blackberry, well, "yes we can."  So if you're going to continue using your Blackberry, and you know you are, the tip for the day is to be smart about it.  Some of the best advice I received in law school was from my Evidence professor, Daniel Blinka.  He said, whenever you send a letter to another party, think about whether you'd want to see that letter appear at trial with a sticker on it that says "Exhibit A."  In today's high-tech world, I would take that a step further and say you should imagine that exhibit sticker on everything you write.  And that goes double for your emails, since that's where the good lawyers will look first.