The Problems With E-Mail 2The Problems With E-Mail 2

Or that intimidated. An IT worker at another of Haworth's clients saved an executive's e-mail on CDs that he stored in his home kitchen, after the exec yelled at him for not being able to recover his deleted e-mails.

The new model of unified voice mail and e-mail is compounding matters, as voice mail must also be retained and searchable for legal and regulatory compliance purposes. The legal department of accounting firm Grant Thornton doesn't let employees forward voice mails off-site for fear they could expose the company to litigation.

REGULATORS MEAN BUSINESS

Regulators, meantime, are pushing hard on e-mail discovery, which means companies need to have documented, and coordinated, policies for e-mail retention. Aaref Hilaly, CEO of Clearwell, an e-mail discovery software company, says his customers in the power industry complain about regulators breathing down their necks. "The [Federal Trade Commission] is always saying to them, 'Prove to us in this specific case that you're offering power through third-party vendors at the same rates as you would offer your own customers,'" says Hilaly.

When e-mail gets subpoenaed for discovery, it's crucial that nothing relevant has been deleted--even if it was unintentional or deleted for a different reason. A client of LECG's Haworth was under a fraud investigation at the same time the company was recycling its PCs. E-mail messages went out telling employees to delete their files, since the company would be replacing their computers. Such e-mails could easily be misinterpreted by outside investigators.

Another faux pas is reformatting documents. Bob Krantz, senior account executive for forensic discovery software company On-Site E-Discovery, says some of his clients save e-mail messages as rich text documents instead of in native form and that loses a lot of the characteristics of the original e-mail. Changing the characteristics of a file alters metadata, which changes the look and feel of an actual message, he says--for example, dropping the embedded spreadsheet that might be in a message. "I've had the Department of Justice ask for Lotus Notes natively now because they've seen that so many times on projects," he says.

On the other hand, e-mails don't always hold up in court. In the past, if a company handed over anything to the other side in a lawsuit, courts would say they'd lost any presumptive attorney-client privilege, says Andy Cohen, associate general counsel and global practice lead for storage vendor EMC. Now, Cohen says, the volume of e-mails that's subpoenaed has made courts think twice; the notion of inadvertent waiver of attorney-client privilege is no longer valid.

Don't count on those annoying disclaimers that legal departments append to the bottoms of e-mail to bail you out of hot water. They don't hold any legal weight, Gartner's Cain says. "I went through a couple of very common legal disclaimers line by line with an attorney, and we ended up rolling on the floor laughing at how toothless these disclaimers really are," he says.

Geography is a challenge--more specifically, knowing which rules apply in which jurisdictions. For example, European e-mail users are afforded much more privacy protection than users in the United States. Overall, regulations continue to be complex and confusing, and the more you brush up, the safer you'll be.

Fortunately, only a few e-mail problems revolve around goats and termites. But many of the headaches caused by e-mail involve dealing with spam, finicky executives, and aggressive regulators. While it's heartening to know there are worse e-mail problems out there than yours, don't ignore your own slowly overloading e-mail server.