Electronic discovery - E-mails, Enron, and Karl Rove

The office computer crisis delayed my commenting on this Washington Post article,
'Delete' Doesn't Mean 'Disappear'. The writer, Rob Pegoraro, does an excellent job explaining the life of e-mail and the techniques for removing e-mail. I suggest anyone and everyone read the technical bits, but I think this passage ought to put the importance of this into perspective for everyone:

So even if both the sender and recipient strive to make a message disappear, "data forensics" companies can dig it up. Brian Karney, the director of product management for one such firm, Guidance Software of Pasadena, Calif., bragged about how easy it is to unearth a long-buried message from the database file created by Microsoft Outlook -- the software used by many businesses and organizations, including the White House.

"Anybody can recover an e-mail," Karney said. "You just need to know how to look and find that stuff."

Encrypting e-mail -- something most users never bother to do -- can keep the contents of your correspondence secret. But it can't hide other data about the e-mail, such as subject, addresses, dates and times, which can be incriminating on their own.

Just because it's possible to find long-lost e-mails doesn't mean anyone is doing that with yours right now.

Your Internet service provider or Web-mail service, if it wants to stay in business, is not likely to eavesdrop.

And your office's IT department may be too busy to bother. Although a lot of companies say they monitor employee e-mail (55 percent, in a 2005 survey by two trade groups, the American Management Association and the ePolicy Institute), you can bet that most rely on automated software to do the job. It takes an exceptionally paranoid, well-financed business to hire people just to read the mail.

If, however, somebody thinks your correspondence in particular hides a sufficiently sordid secret -- especially if that somebody is a politician or a prosecutor -- all that can change.

I added the italics to that last paragraph. I would have also added business competitor to politician or prosecutor.

If you have a business and do not understand why preparing for electronic discovery is necessary for your business, I think reading this article will give you understanding.

Professor Tanford Attacked by Liquor Interests

IU Bloomington Law Professor Alex Tanford litigates direct-wine shipping cases. Direct-shipping has been a hot topic in the alcoholic beverages area for several years now and Tanford has been very successful in knocking down state laws barring direct shipment of beer and wine. This annoys the liquor wholesalers. The Indiana Law Blog has excerpts of the news stories on this here.

The problem lies with the Internet. The direct-sellers sell over the Internet to out-of-state buyers. Amazon has been doing the same thing for years but booksellers do not have the convoluted and complicated relationships between big money, politics, and taxes as the liquor wholesalers. If they must attack Professor Tanford, I assume that they are feeling the heat of the new economy on their neck.

Electronic discovery - keeping records

The January 2004 Law Practice Today (yes, the issue has been around that long) has an interesting article on record retention policies. While geared towards lawyers, I suggest that business owners might want to take a look at the article. The writer outlines the importance of a record retention policy, the problems of retaining records and possible solutions. Here is the conclusion to the article:

Demonstrating to the Court the existence of a reasonable, well thought out, comprehensively distributed, and carefully adhered to and monitored records preservation and retention program with rigorously enforced penalties for non-compliance is critical in limiting the exposure of a client, its management, and its attorneys to potentially serious statutory and spoliation sanctions. A proactive records preservation retention program can also help prevent a potentially ruinous criminal prosecution for obstruction of justice and protect the organization’s outside counsel itself from claims of negligent representation or even malpractice.

An E-Commerce Blog

While e-commerce is not an area I specifically focus on, no one should ignore it in these days of the Internet. Here is the E-Commerce Law Blog and I suggest if you have an interest in e-commerce that you keep an eye on this blog.