Part Two: Instant Messaging and the Law—Why Every Employer Must Establish Rules and Policies

Chapter List

Chapter 6: Instant Messaging Creates Business Challenges and Legal Headaches

Chapter 7: Instant Messaging Compounds Confidentiality Concerns

Chapter 8: Protecting Privacy in the Instant Messaging World: Prying Eyes May Be Reading Over Your Electronic Shoulder

Chapter 6: Instant Messaging Creates Business Challenges and Legal Headaches

Overview

E-mail and instant messaging have altered the manner in which business matters are communicated, and they have changed the way in which lawsuits are triggered and evidence of wrongdoing is gathered.

The Federal Rules of Civil Procedure specifically allow for electronic discovery. And case law on both the federal and state levels demonstrates that electronic documents, including e-mail and instant messages, are legal evidence. For an employer facing a workplace lawsuit, this means that e-mail messages and IM chat— incoming, outgoing, and internal—can be discoverable and used as evidence to support—or destroy—your case.

The electronic equivalent of DNA evidence, e-mail and instant messages regularly trigger workplace lawsuits and create a long data trail for regulatory investigators and lawyers to follow. More than one-fifth of Fortune 500 companies face some 125 nonfrivolous lawsuits at any given time, according to a 2003 survey conducted by the computer forensics company Renew Data. ^[1] In the age of electronic communication, it’s a safe bet that e-mail, instant messages, or other forms of electronic records play a role in many (if not most) of these lawsuits.

Accidental and intentional misuse of the organization’s computer system has resulted in claims of sexual harassment, racial discrimination, wrongful termination, invasion of privacy, and obstruction of justice—just to name a few of the disasters triggered by employee instant messaging and e-mail use.

The best advice: View your active instant messages, e-mail, and other forms of data as the electronic equivalent of the good old fashioned file cabinet. You and your employees are accessing and adding data to that file cabinet daily. In the event of a lawsuit, you may find yourself possessing a huge supply of potentially damaging (or supportive) files that must be turned over to the opposition— whether you like it or not.

Instant messaging text played a key role in the Vermont Supreme Court’s decision to uphold a jury’s February 2004 decision to convict a defendant for inciting and attempting to use a child in a sexual performance.

Instant messaging evidence included graphic and sexually explicit chat about the child that took place between the defendant and the child’s mother. Instant messaging text retrieved via a computer forensic examination contained substantial evidence that the defendant asked the child’s mother for permission to take lewd photos of the child. ^[2]

Instant messaging chat may be more instantaneous and abbreviated than other forms of evidence, but that doesn’t make it any less valuable—any less damaging—in workplace claims and criminal proceedings.

^[1]Steve Ulfelder, ‘‘CSI: Lost E-Mails,’’ Network World ( September 8, 2003), www.nwfusion.com/research/2003/0908csi.html.

^[2]State v. Voorheis, 2004 WL 258178 (Vt. Feb. 13, 2004). See ‘‘From the Bench: Vermont Supreme Court Affirms Conviction Based on Instant Messaging Evidence,’’ Kroll Ontrack Computer Forensic Newsletter (March 2004, Vol. 2, No. 3), www.krollontrack.com.