(c) 1995 Copyright The News and Observer Publishing Co.
(c) 1995 The Boston Globe
SEATTLE (Oct 20, 1995 - 00:36 EDT) -- When a Massachusetts bank found
it had just bought a piece of land with hazardous waste buried on it,
lawyers filed suit and sifted through the seller's records to learn if
knowledge of the dump had been hidden during the transaction.
But it was not until self-styled computer sleuth John Jessen, armed
with a court order, tapped into the selling company's computer files
that they found the proverbial smoking gun, in the form of an
electronic message between the broker and a company official.
"Eric, the papers have been signed and the bank is now the owner of
Parcel 13," the e-mail read. "We made it through the whole process
without alerting them of the waste site on the northeast corner."
More and more, young, computer-savvy lawyers are demanding that such
computer files, especially e-mail correspondences, be part of
discoverable evidence in lawsuits over trade secrets, sex and race
discrimination, and questionable dismissals, as if the words were
pulled from a cabinet file drawer rather than a computer disc.
For many companies and the employees within them, Jessen's arrival
marks a worst-case scenario. He has the seemingly magical ability to
resurrect years' worth of e-mail and deleted files that computer users
wishfully assumed had been zapped from the system long ago.
Such ability of Jessen and a few others has sparked a furious debate
in legal circles, and has raised a host of questions among corporate
computer users, most notably, isn't an e-mail correspondence between
two workers private? The answer, in a nutshell: no.
"People are stunned to learn it," said Michael Patrick, a Palo Alto,
Calif., lawyer who wrote a book on the use of computer files in court
suits. "Their jaws drop. I tell in-house lawyers that they have to get
people to realize that this is for real. Paint a picture: 'Look,
folks, next time you are sending an e-mail message, repeat the mantra
that a lawyer outside of the company will look at this and show it to
a judge."'
Jessen, owner of Seattle-based Electronic Evidence Discovery, one of
only two companies in the country that specialize in computer
sleuthing, said a personal computer isn't actually personal, not when
it's at a company, and the delete button rarely means delete, not when
there are little-known backup tapes running all hours of the day that
tend to rename and store old files and e-mail messages for weeks,
months and even years at a time. It's just that few people, even few
computer experts, know how to manipulate them, he said.
Typically, Jessen will arrive at a company with a court order giving
him access to the computer system so he can search for potential
evidence in a lawsuit. Invariably, lawyers are especially interested
in deleted files and e-mail correspondences, the latter because that
is where people let down their guard and write thoughts they might
never publicly speak or commit to paper.
"People just don't use the same level of care when they are putting
things into the computer," said Jessen, sitting in his office here.
"They have this false sense of privacy. These are not personal
computers."
Said Joan Feldman, owner of Seattle-based Computer Forensics Inc., the
rival company: "E-mail is where people are honest, it is where they
are joking, and it's where they are using their creativity -- what
your lawyer would hate but my client would love."
Time and again, such e-mail has yielded the smoking gun in lawsuits,
with the result being enormous judgments in favor of the plaintiff.
In one particular redlining case, Jessen said he found an e-mail
message from a bank official that said, "We're not going to approve of
anything in that part of town."
In his searches, Jessen often comes across company employees using
their computers for extracurricular purposes. One employee of a
Philadelphia media company was spending an average of six hours a day
downloading pornography into his computer system, repackaging it and
then selling it at computer fairs, Jessen said. Accountants are
constantly found doing the books of other companies. Employees often
have telephone numbers of people they probably should not have,
including the midlevel executive in one trade secrets case who had the
private line of the president of a rival company, according to Jessen.
"One lawyer told me one day, 'If other people write the same garbage
in e-mail that I do, I want to see it,"' Jessen said.
Lawyers in the nation's computer corridors are increasingly turning to
this kind of discovery, specialists said. Jessen and Feldman routinely
spend days and even weeks at a time on the road, much of it in Boston,
Philadelphia, New York, Washington and Silicon Valley, Calif., and
both are often hired by companies to seek advice on how they can
protect themselves from a rival's foray into their computer systems in
a court suit. Still, most lawyers, especially older ones, have yet to
turn to computer files for discovery.
"Lawyers are not as savvy as the technical people, the people who know
what's available electronically," said Jean Pechette, a lawyer with
the Chicago firm Pattishall, McAuliffe, Newbury, Hilliard & Geraldson,
and a specialist in computer evidence. "They tend to be behind the
times. They're a conservative group as a whole. But more and more,
lawyers are waking up to the notion of seeking electronic based
discovery in their motions."
Within legal circles, a debate is raging about how public expectations
over e-mail privacy do not match the law, and whether the law should
be changed. Most workers think their own company cannot even peruse
their e-mail. But unless that company has given them an expectation
that their mail is off-limits, it is fair game.
"The law hasn't caught up yet with the expectations of employees,"
said Patrick, the lawyer. "Lots of employees think there is more
privacy."
Until then, there will be boom times for the likes of Jessen and
Feldman, and the latter is about to open a second office in
Washington, D.C. Jessen alone is amid 118 litigations now, and advises
18 Fortune 500 companies how to quickly dispose of their computer
data.
One case Jessen was called in on was particularly pointed. A
high-level executive with a Manhattan health company employed a new
technology that allows users to tape themselves with a tiny camera
built into their monitor, send it through the system and have it
appear on the recipient's screen as a talking, moving image.
One night, arriving at her hotel, she flipped open her portable
computer and began recording such a message. Sitting before her laptop
in the privacy of her room, she teasingly disrobed, performed what a
corporate lawyer would later describe as a "shimmy," and purred to the
intended recipient, a fellow married colleague, "Hurry to the hotel
and here's what you get tonight."
Problem is, she struck the wrong button on her computer, and the video
flashed on the screens of more than 400 employees throughout her
health company -- subordinates, bosses and people who had never met
her before (but some of whom no doubt made a note that they would like
to.)
Jessen was asked to come in and do damage control and educate workers
on the dangers of e-mail. Shortly after the video message was
distributed around the company, bootleg versions showed up on floppy
discs and were sold at computer fairs.
"It was like the dance that wouldn't die," he said.