The Trouble With E-mail

That e-mail you just sent could be used against you in court.

Yes, e-mail, for years the medium of casual workplace conversation, has now become a central form of documentary evidence during a year packed with court cases and congressional hearings about alleged corporate malfeasance.

As workers at Merrill Lynch, Enron, Arthur Andersen, Credit Suisse First Boston and other major companies can attest, even a brief, off-the-cuff message can have serious legal and financial consequences.

And while workers getting in hot water for e-mail indiscretions has been a familiar saga for years, increasingly, they are getting their companies in trouble, too. Given the striking disparity between the spontaneity of these e-mails and their long-term impact, companies from Wall Street to Silicon Valley are stiffening their e-mail policies and stepping up their efforts to monitor employees' message habits. And many firms have begun offering programs to monitor workplace use of e-mail's even more slippery cousin, instant messaging, or IM.

"E-mail is playing a bigger role in the corporate world right now," says Deborah Fallows, a senior research fellow at the Pew Internet & American Life Project in Washington, D.C. "And companies are saying, 'This can't be as freewheeling as it was.'"

‘Piece of Junk’ Becomes Piece of Evidence

The first high-profile court case in which e-mail provided crucial evidence was the Justice Department's antitrust lawsuit against Microsoft in the late 1990s. As part of the government's claim that Microsoft sought to hinder the use of Sun Microsystems' Java programming language, it introduced Microsoft e-mails into the court as evidence, including one from Microsoft Chairman Bill Gates saying that Java "scares the hell out of me."

But Exhibit A in the minds of many corporate managers and workers may be the case this year involving Merrill Lynch and its former star analyst of Internet companies, Henry Blodget. In October 2000, Blodget sent an offhand e-mail to a colleague dismissing the stock of Infospace, which he was recommending at the time, as a "piece of junk."

Rather than disappearing into the ether, however, the message became public after a subpoena by New York Attorney General Eliot Spitzer. According to Spitzer, Merrill Lynch was deceiving investors by touting certain stocks in order to gain investment banking business.

Confronted with seemingly damning e-mails from Blodget and other company employees, Merrill Lynch ended up admitting no wrongdoing in the case, but paid a $100 million fine and agreed to change its research practices. A spokesperson for Merrill Lynch declined to describe the company's current e-mail policies.

Similar e-mail troubles face Credit Suisse First Boston, currently under investigation by Massachusetts regulators, who are said to have collected 400,000 e-mails in their probe of the finance firm.

In one e-mail described in published accounts, an analyst referred to a technique called the "Agilent Two-Step," a practice in which a stock was rated more highly than it deserved in order to avoid losing other business for the firm.

Under such pressures, others on Wall Street are attempting to regulate their electronic communications. Financial firm Bear, Stearns announced this summer, for instance, it will monitor all e-mail correspondence between the firm's research and investment banking departments, in an attempt to ensure that the "Chinese Wall" between the divisions remains intact.

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