Take Charge Of Electronic Technology

(Originally published in The Business Journal)

Electronic technology has expanded into nearly every aspect of life. It makes communicating faster and easier.

Companies have caught on. They increasingly use electronics in their day-to-day activities.

For example, a document that used to exist only on paper could easily be lost. But if that document exists electronically, it can likely be found in several locations. That is good news if the company wants to avoid losing such a document, but bad news if that document incriminates a company in illegal activity.

Consider the recent news about an Ohio Department of Transportation supervisor joking in an email about hiring certain physically endowed women. Had that supervisor made such remarks in a conversation, there would be no hard proof of what he said.

But because the comments were sent in an email, there is such proof and, now, more than just the recipient of the email has read it.

There are many stories of businesses and organizations being hit with massive judgments for being unable to produce electronic evidence, because they either did not have appropriate policies in place or failed to enforce these policies.

In today’s climate, every business and organization needs to have policies that cover this area. This can be an overwhelming task. But following some critical steps makes it manageable.

            1. Develop a document retention policy that is specific to electronic documents. In addition to a general document retention policy, a company needs to have retention policies for electronic communications.

A sound electronic communications policy establishes permissible and prohibited uses, notifies employees that the company is monitoring electronic communications and sets up security procedures, etiquette, and records retention guidelines.

As part of this process, a business needs to consider the types of electronic information that it uses: email, word-processing documents, spreadsheets, databases, digital images, scanned documents, and digital sound and video recordings. Email raises its own technical questions that are important in drafting an effective policy.

            2. Determine the possible locations where this information may be located. This may require a thorough inventory, because information could be stored on computers and devices not even owned by the company.

            You do want to know where your information is, don’t you? While the list is extensive, some potential sources include:

• Tapes, disks, DVDs, CD-ROMS, cartridges, and other storage media;
• Computer hard drives;
• Flash drives, thumb drives, memory sticks, or flash cards;
• Third-party vendor-hosted storage or back-up systems;
• Network drives or servers;
• Cell phones, pagers, PDAs (Blackberries, etc.); and
• Voicemail.

For example, a flash drive can hold thousands of files, and an employee may use such a device to take information home to finish a project. If that employee opens a document on his or her home computer, that computer is now a repository of information that may be relevant in future litigation. Policies need to address these situations.

3. Establish policies for how employees use electronics. What uses are permissible, and which ones are prohibited? It may be necessary to take disciplinary action against an employee for improper use, but this will be difficult if the business does not have such a policy.

Looking ahead, having and enforcing such policies are important if the business has to respond to a hostile workplace claim.

Most importantly, a company needs to decide how its electronic hardware works for it and how that hardware should be used. There is no one-size-fits-all policy; every company must make these decisions based on their situation and in consultation with their attorneys and IT professionals.

Vansuch can be reached at mvansuch@hhmlaw.com or at (330) 392-1541