Me-Mail and the Me/Myself Privilege

By Steve Weissman posted 11-01-2010 15:43

  

Last week’s trip down Politico Lane took us into the realm of propagating compliance out to the people and parties you work with on the outside. Today, we’ll gaze into the maw that is email management, highlighting a story that is timed to coincide with Election Day tomorrow.

Specifically, news broke the other week here in Massachusetts about how the top advisors to Independent gubernatorial candidate Tim Cahill had discussed the how-tos and ramifications of his running mate’s defection – and their own – to the side of his Republican opponent.

How do we know? Because the gang in question apparently documented it all in a series of emails, and Cahill now is suing them for breach of contract and unfair practices. I think this is pretty funny in a field as notorious for unfair practices as Massachusetts politics, but there it is, nonetheless.

The fact that Cahill and his attorneys apparently have a long chain of email messages to look at gives them great confidence in their ability to prevail. Whether or not they do, though, there’s a great lesson in it for you either way.

Setting Policy About Your Policy

We’ve talked before about the need to pry people loose from their long-held notion that their emails are, well, their emails! I call this the “Me-Mail” Syndrome, and it never ceases to amaze me how people cling to the belief even though evidence mounts every day that there’s no such thing as a Me/Myself Privilege.

Or is there?

Last March, the New Jersey Supreme Court found that the Loving Care Agency should not have read e-mails one of its former nursing managers sent to her lawyer using a personal Web email account even though she sent them from her employer’s computer.

The case in question actually was not about this issue, but it bubbled up because Loving Care used those emails in preparing its position. The important part for you – and perhaps for Cahill’s former cronies – is the Court’s shining of the spotlight directly on the need for clear policies to dictate what a company can or cannot do.

Loving Care’s policy “does not address personal accounts at all,” the decision said, and “does not warn employees that the contents of such e-mails are stored on a hard drive and can be forensically retrieved.” So in this instance, it turns out the me-mail actually was me-mail! But only because there was no policy statement to the contrary.

Lessons Learned

Which brings me back to where I left off last time we talked about it: me-mail management is one of those places where you may have to play a bit of hardball in order to secure the corporate protections you seek.

You may well have to write a policy that specifically states “don’t do it or else” – though hopefully in nicer terms – and then make sure everybody understands what that means.

Something tells me that Candidate Cahill didn’t do this in so many words, and if the email trail is the only hard evidence he has, he may well find himself wholly out of luck despite the fact few in the state doubt that events unfolded in the way those emails more than suggest.

All I can say is, don’t let this happen to you.

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