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Computer Snoops Find "Delete" Doesn't = Gone

Newsletter • volume 2 • number 3

For years, companies have been wary of leaving a "paper trail" of sensitive material, fearing that an ill-considered note might be used against them in a lawsuit. Computers, with their handy "delete" keys, seem to be safe alternatives. But no longer. The electronic age has spawned a whole new breed of "computer snoops" who retrieve "deleted" information - some of it presumably erased years ago - from hard drives. Even draft versions now end up as evidence in litigation.

A case in point: a female executive recently sued her company over a lost job. The company blamed the bad economy, but a computer "detective" retrieved a derogatory e-mail message that clearly showed the woman had been fired because of her gender. Hours later, the company wrote a check for $250,000 to settle the suit.

E-mail, in fact, is packed with offensive material, much of it racist and sexist. Evidently, people feel no inhibitions when using e-mail, because they think their messages are private and can be made to disappear. But as computer expert John Jessen puts it, "With computers, delete doesn't mean delete." Many software programs are specifically designed to make several copies of files and store them in out-of-the-way places. A user may think everything has been erased, but a super-efficient backup system has probably retained it in triplicate.

Jessen points to another case in which one company sued another for stealing corporate secrets. He was able to "retrieve" two messages that supported the plaintiff's contentions and led to a settlement. The first said, "Hi David. Please destroy the evidence on the . . . you and I talked about today. Thanks, Laura." "+ + + EVIDENCE DESTROYED + + +" began the second.

Experts agree that companies haven't begun to deal with these issues. Most may not know what kinds of messages employees are sending via e-mail or posting on electronic bulletin boards. And the majority have no idea what may be lurking in their "deleted" files. Play it safe by keeping your electronic correspondence and documentation void of illegal comments. Protect yourself and your company against embarrassing and expensive litigation.