Death By Email Blog

Bad Email Archiving Contributes to $1.55-Million Settlement

The City of Dallas just settled a wrongful termination / harassment suit with an assistant Dallas fire chief, Roland Gamez, for $1.55-million.  One of the keys to settling the suit was the city's ineffective email archiving system. 

U.S. District Judge T. John Ward cited "reckless conduct" and he ruled as "sanctionable conduct" for the city's failure to turn over records in a timely manner.  (Dallas Morning News)  The judge also "accused an assistant city attorney of submitting a false affidavit and obstructing a court order" related to the ability to retrieve documents.  Sanctionable conduct can lead to significant penalties. 

"Attorneys for the city argued that the problems in turning over records were mistakes caused by a complex e-mail archiving process that was laborious to search," said the report.

"We have to improve all the technology so we have a centralized way of keeping records," Mayor Pro Tem Elba Garcia said.

The email archiving problem not only contributed to the need to settle quickly, it also burdened the city with significant IT costs.  The Dallas Morning News also reported that the city hired an outside law firm, which ended up costing hundreds of thousands of dollars.  The city also hired a separate lawyer – an expert in attorney grievance cases – to represent the accused assistant city attorney individually. 

"Certainly, it is a lot of money," Mayor Tom Leppert was quoted as saying. "There were some issues that came up that weren't related to the key elements of the case."

City Council members said the city was meeting with its technology department to fix the email archiving problem.

No Expectation of Privacy

An Arkansas judge ruled that the act of sending an email to a government email address means that there is "no expectation of privacy."  And, it would seem that you don't need to have your emails released to the public to be completely embarrassed by them in public. 

The potential release of an Arkansas woman's email made it to the State Supreme Court.  While excerpts from only a few of the emails were released (Arkansas Blog) -- there was certainly enough embarrassment to go around.  The Arkansas Democrat Gazette, a widely read newspaper, described the emails as "highly personal and graphic."  And, while she was not named in the paper, she was described as the "woman representing the company providing the county’s (Pulaski County) financial software."   Even the name of the software company has become public -- although I won't repeat it here.

I don't know the name of this poor woman.  But, I imagine that everyone at her company, the county office, and most of her friends now know about her email habits.

The release of the emails is not the direct result of what she did.  It wasn't because of her -- it was the guy on the other end of the email, former Pulaski County Comptroller Ron Quillin.  He had leaded not guilty to charges that he embezzled $42,000 while in office, according to Today's THV. The Arkansas Democrat Gazette used the Freedom of Information Act to request emails by Quillin.  While the country tried to prevent release of personal messages, County Judge Buddy Villines decided that the messages to the woman were business mail.  Here are two excerpts from the ruling reported on the Arkansas Blog: 

""...this court finds that Jane Doe had no expectation of privacy when she emailed Mr. Quillin at his Pulaski County government email address..."

"The public has a right to know if the personal relationship with Jane Doe affected Mr. Quillin's performance as a public employee. The public has a right to know if the personal relationship influenced Mr. Quillin in expenditures of county funds."

I was aware that under open meeting laws, emails that were sent to a quorum of government officials was public record.  (Many local governments are still learning this lesson.)  But, the "no expectation of privacy" by mailing to a government email address is bigger than that.

The Arkansas Supreme Court today granted a temporary stay of the order, but it did not reverse the ruling.   Unfortunately, by making it a Supreme Court issue, the email became more notorious.  As email archiving becomes more widely used -- especially by state and local governments -- I think that we can expect more people caught up in the spotlight.

What's the Story, Morning Glory?

I often tell an anecdote about how generations communicate.  When my mother-in-law wants to express a thank you or a birthday wish, she always writes a note -- with her beautiful handwriting -- and sends it by postal mail.  My wife and I almost always pick up the phone and call.  My kids send an email.  What is coming for the next generation of workers?  Is this a trend or just my family? 

Harvard Business School professor Andrew McAffee's blog quotes a study of current Facebook users of different ages by the Gilbane Group.  Granted, the sample is biased towards Facebook users, but the age difference shows that 18-24 year olds believe that email will become LESS important in their jobs than 25-34 year olds.  The data in their chart shows that SMS messaging, blogs, wikis, and social networking sites will become even more important.

I guess that the next generation will have "Death By SMS."  (I better grab the domain name now!)  Why do I keep thinking of the "Telephone Hour" song from the musical Bye Bye Birdie where the parents are frustrated with teenagers making phone calls?  Play song

"Wise Up or Die" in the Live Free or Die State

"You all live in a dream land of lies, the father of which is the devil himself: devil worshipers you must be," Joe Haas wrote in an e-mail addressed to a member of the Lebanon, N.H. city council, reported the Concord Monitor. "Either you do your job, or get out of the way. WISE UP OR DIE. If the latter be your choice, then BE GONE with you NOW!"

This email is actually a bizarre twist to the on-going case of Ed and Elaine Brown, who were convicted and sentenced to five years in prison earlier this year for not paying income taxes.  But, the Browns reportedly say they will resist arrest and have been in their Plainfield, N.H. home for the past five months.  CBS News describes their house as a "fortified compound" made with concrete.  It has solar and wind power generators.

Friday's email from Joe Haas, as printed in the newspapers, states that the New Hampshire governor and the Lebanon, N.H. city council has not done enough to protect the Browns.  But, the email named one council member by name and said, ""You have turned the Isaiah 1:21 'faithful city' (in your 78+ years Rep. Terri Duddy) into a land of the harlot: the vague and the vagabond."  (Concord Monitor)  The newspaper said that Dudley (proper spelling) found the e-mail chilling.  "Everybody has the right to free speech," she said. "I do not think they have the right to threaten the life of someone else."      

Steve Colbert on Email

Last night, Steve Colbert on the Colbert Report asks the following questions: What is email?  Is there a way to unsend email -- perhaps with an email assassin?  Can you break up with girls via email?  All the important stuff.

 

Shell Executive Resigns Over Motivational Email

"Lead me, follow me or get out of my way," said the email from David Greer, deputy chief executive of Sakhalin Energy, a Russia-based consortium led by Royal Dutch Shell.  The email further said that he despised cowards, according to a report by the Financial Times.

I guess that it might not be a good idea to quote a U.S. general in Russia.  (The quote is from WWII general George Patton.)  Perhaps the tone and the source is what led to his resignation a few days ago.

Email Privacy Rights Affirmed

For the past 20 years, the Stored Communications Act allowed the U.S. government to read your email without a warrant.  Fortunately, the 6th U.S. Circuit Court of Appeals just ruled parts of the Act unconstitutional (4th Amendment privacy rights) and affirmed the same privacy rights for email that has long existed for phone conversations.

Telephone calls are protected by wiretap laws.  This not only protects voice calls, but also data calls that are in transit on the Internet.  So, email in transit has always been protected by wiretap laws.  Unlike voice calls, email is stored on servers by ISPs until you click the SEND/RECEIVE button or for an even longer period of time by web mail services, such as Gmail, HotMail, and Yahoo!Mail.  They The Stored Communications Act took advantage of this and said that messages could be retrieved from the ISP when stored for at least 180 days.

For 20 years, the government compelled ISPs to hand over email messages without a warrant and did not need "probable cause."  The rules got even tighter with the Patriot Act.  In some cases, the ISP was even allowed to notify you that it handed over your emails.  The new court ruling specifies significant protections.  E-commerce Times summarized the new requirements faced by the government as follows:

1. It must get a search warrant based on probable cause; or
2. It must get an order under the Stored Communications Act, with notice to the account holder required; or
3. It can obtain the content if the ISP's privacy notice specifically says it reserves the right to access content, and it actually does access users' content. This is a major -- and thus far, rare -- departure from typical notices, Ries said, that state the ISP can access content for network maintenance. 

This is great news for the protection of individual liberties.  The ruling also has far reaching implications due to the expanding role of stored information.  The ruling also enhances the use of the Internet as it confirms protection for information stored on social networking sites, such as Facebook and MySpace, as well as to blogs like this one. 

"Extensive Destruction of the Emails of White House Officials"

"There has been extensive destruction of the emails of White House officials by the RNC.  Of the 88 White House officials who received RNC email accounts, the RNC has preserved no emails for 51 officials." -- House Committee on Government Oversight and Reform, June 18, 2007.  (The bold is in the original report.)  Full Text of Interim Report (PDF)

In a startlingly blunt report released by the U.S. House today stated that the White House intentionally "circumvented"  the email archiving system required by the Presidental Records Act.

"...There are major gaps in the e-mail records of the 37 White House officials for whom the RNC did preserve e-mails. The RNC has preserved only 130 e-mails sent to Mr. Rove during President Bush’s first term and no e-mails sent by Mr. Rove prior to November 2003. For many other White House officials, the RNC has no e-mails from before the fall of 2006." 

"At this point in the investigation, it is not possible to determine precisely how many presidential records may have been destroyed by the RNC (Republican National Committee," the report indicates.

In a statement reported by the AP, committee chairman Henry Waxman called the panel's findings "should be a matter of grave concern for anyone who values open government." He said the committee will investigate "who knew about the violations of the Presidential Records Act, why they did not act earlier, and what e-mails can be salvaged from RNC, White House, and agency computer systems."

The report was especially brutal regarding Alberto Gonzales.  "There is evidence that the Office of White House Counsel under Alberto Gonzales may have known that White House officials were using RNC e-mail accounts for official business, but took no action to preserve these presidential records."  (Bold in the original report.)

 

Tired of Hearing About E-discovery?

Clearly, you are not the only one.  The Practice Management Blog has a new dictionary definition:

e-discovery exhaustion: (noun) condition in which a lawyer would rather read about grandma’s bursitis than learn one more creative way in which they and their clients are going to hell if they can’t produce the CEO’s 1972 OTB records at the request of the next Erin Brokovich wanna-be looking to make a reputation and a fortune suing them in Federal court.

What E-Mail Can You Delete?

"What E-Mail Can You Delete?" is the title of a recent article in CIO Magazine.  (Sorry, I am a bit behind in my reading.  It is from the May 8, 2007 issue, which was sitting in the lobby of my office.)   It states that the excuse given by the White House for deleted emails "wouldn't fly in the business world.  E-discovery laws in effect since last December mean companies can no longer claim that finding old e-mail and other documents is an unreasonable burden."

The article goes on to talk about the importance of an audit to make sure that email archiving policies are followed.