1 E-mail. Many lives.

As some recent corporate cases show, your electronic computer messages rarely die - and they can come back to bring years of bad luck.

Messaging in the Workplace

October 10, 2004|By Bill Atkinson and Stacey Hirsh | Bill Atkinson and Stacey Hirsh,SUN STAFF

John J. Pileggi was annoyed about having to attend a meeting on Christmas Eve with other top executives of Baltimore's Mercantile Bankshares Corp., and he minced no words about his disgust in an e-mail to a colleague in December.

"I ... hate everything right now," Pileggi wrote in an electronic missive that disparaged some coworkers. "Mason is going to be at this Xmas Eve meeting. Given I hate him, Ried and Troupe, and I have to ... come in on that day for this, he says the wrong thing and he spits teeth."

The e-mail message was one of dozens, ranging from deeply personal to profane, that Mercantile mined from its computer memory to build an $8 million countersuit that accuses its former prize employee of fraud and breach of fiduciary duty. Pileggi earlier sued Mercantile for $240 million, contending that his firing deprived him of a potential huge payout should the bank be sold.

The case is the latest example of a worker's e-mail trail coming back to haunt him. Corporations, government prosecutors and plaintiff's lawyers have rooted through computer e-mail to find damning messages and then used them against workers in numerous lawsuits, with punishments ranging from fines to prison.

Many employees take false comfort in an assumption that their e-mail is private and that nobody reads it. Corporate personnel and technology experts say e-mail is corporate property and regularly monitored. Even messages that have been deleted can be recovered.

"That system belongs to the boss," said Nancy Flynn, executive director of the ePolicy Institute in Columbus, Ohio, and author of several books on e-mail. "Chances are big brother is reading over your electronic shoulder. If you are involved in a workplace lawsuit, whether it is sexual harassment, racial discrimination, wrongful termination, hostile work environment, you can take it to the bank ... that e-mail is going to be subpoenaed and used as evidence for or against your case."

E-mail, like cats, has many lives.

Among high-profile cases of self-inflicted damage from e-mail, former Wall Street analyst Henry M. Blodget and investment banker Frank P. Quattrone - superstars of the dot-com investment boom of the late 1990s - were taken down by prosecutors who had discovered incriminating evidence against them in their private electronic communications with colleagues.

Chevron was forced to pay $2.2 million to four female employees in 1995, who sued for sexual harassment after male co-workers circulated offensive e-mail, including one message that ticked off "25 reasons why beer is better than women." And this month, in a different kind of pitfall, a Wall Street Journal reporter put her assignment in Baghdad, Iraq, in jeopardy after an e-mail message she had written to friends decrying conditions in Iraq and the American military mission found its way onto the Internet.

More than 40 percent of large companies employ workers to monitor outgoing e-mail, according to a 2004 survey of 140 companies by Forrester Consulting Services and Proofpoint Inc. Nearly one-third of all the companies surveyed said they regularly audit outgoing e-mail content.

"The most important thing that people are worried about are specific confidential memos ... leaking out of the company via e-mail," said Keith Crosley, director of market development for Proofpoint, which makes e-mail security software. "Very similar to that concern is leaks of very valuable intellectual property or trade secrets."

E-mail is increasingly becoming a "smoking gun" in corporate litigation. In a recent ePolicy survey, more than one in five employers has had employee e-mail and instant messages subpoenaed in the course of a lawsuit or regulatory investigation.

As if to underscore that point - and to snare prospective clients - Iron Mountain Inc., a Boston company that specializes in e-mail archiving and "restoration," offers them a gag gift: a faux novel entitled "Great E-mails I Have Read, By Eliot Spitzer."

Michael G. Kessler, president and chief executive of Kessler International, a New York computer forensics company, said firms like his can use software to dig through a computer's hard drive in several hours.

"When you think something is erased from the computer, it is not necessarily erased," Kessler said. "The advice is, if you don't want people to know, don't use the company computer."

When files are deleted they remain on the computer until the system needs the space and writes over them. That can take anywhere from a couple of days to several years depending on the size of the system. The biggest companies maintain multiple servers and hard drives that can store billions of pages of documents. A single hard drive, Kessler estimated, would fill two tractor-trailers with paper from floor to ceiling.

"If I deleted an e-mail today, it could be on the computer five years from now," he said.

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