Instant messaging and employee e-mails have become an attorney's first legal line of offense - or, in some cases, defense - for workplace lawsuits, according to a new poll from the Columbus-based ePolicy Institute and the American Management Association

The survey earlier this year of 840 U.S. companies found that one in five firms have either received subpoenas for employee e-mail or have used e-mail to defend the firm against allegations of sexual, racial or other discrimination claims.

That is a dramatic increase from two years before, when one in 10 companies faced a lawsuit because of e-mail practices, the poll found.

"Today, e-mail and instant messaging are the electronic equivalent of DNA evidence," Nancy Flynn executive director of ePolicy Institute and author of the best-selling books Instant Messaging Rules and E-mail Rules.

"If you're sued, you can be certain that your employee e-mail and instant messages are going to be subpoenaed," she said.

"The biggest surprise to me from our poll was that only 35 percent of the companies are retaining their business e-mail records."

Disregarding the implications of e-mail is the corporate equivalent of playing with fire - a daily flirtation with potentially crippling litigation.

THOUGHTS ON E-MAIL

A survey of 140 technology officers at North American companies gleaned these conclusions about outbound e-mail: • 24 percent believe reducing liabilities linked to outbound e-mail is "somewhat unimportant." • 6 percent think corporate liability on outbound messages is not at all important. • 68 percent believe leaking confidential issues such as trade secrets is important or very important as an e-mail issue. • 30 percent have staff members dedicated to reading outbound e-mails. Source: Proofpoint Inc. and Forrester Consulting

Companies risk a legal vice known as vicarious liability, that is, employers can be held responsible for the inappropriate or insensitive actions of a single employee.

But the rogue worker who violates e-mail policies, sends an offensive message and thereby triggers a harassment lawsuit is probably never going to face a jury.

"The employer is the one who is going to be sued," Flynn said.

The good news for companies is that the U.S. Supreme Court has found that employers that have written e-mail policies in place, support them with employee education and back it all up with enforcement can use those efforts as a defense against liability.

David Hamilton Peck, a partner in the labor and employment department at the Taft, Stettinius & Hollister law firm in Cincinnati, said electronic discovery has become a first step for a litigant.

Workers tend to be more conversational in their e-mails and do not view them in the same light as a letter or memo. They are viewed as a private conversation, similar to a telephone call.

"And when the document is created, it puts the employer at risk," Peck said.

"Discovery used to be done with boxes full of paper," said Tom Kirkwood, partner in the Cincinnati office of Thompson Hine LLP, and a litigator who frequently searches business records of adversaries.

"Now it's e-mail. But we're finding clients have a difficult time locating where the electronic matter resides. Is it in a server in Cincinnati? Or is the server in New York City?"

Law firms are not alone in mining the lucrative vein of e-mail and instant messaging.

Companies that consult on technical issues have gotten more work from the explosion in e-mail, said Scott Snodgrass, owner and president of Geeks Inc., a Mason-based technical firm with five employees.

"Typically, it starts with the internal management coming to an IT guy or a company like ours and saying, 'Get us a history' - and we come back with the evidence," Snodgrass said. "At that point, if they see that something is justifiable, they will call in the attorneys.

"I believe about 90 percent of e-mail is personal. But people need to know that they are violating company policy, whether they are e-mailing Grandma or stealing company information and e-mailing it to competitors," Snodgrass said.

Chad Mattix, vice president of managed services for Mycom Group Inc., a technology and managed service provider based downtown that employs 30, believes companies do not adequately emphasize or monitor outgoing e-mail.

"There has not been enough pain for anybody to take steps," he said. "Sixty percent of companies actively monitor outbound e-mail in some way shape or form. But that means 40 percent do not."

The survey by ePolicy offered another revelation about how companies deal with e-mail and instant messages: Only 35 percent retain e-mails as business records, something that may be required by law or government regulations.

"Whether you are a small business of one person or a multinational of 1,000, if you are allowing employees to operate e-mail or instant messaging, you are putting your assets, reputation and future at risk," Flynn said.

"You just should not do this in a casual way or without rules, policies and procedures."

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E-mail jeckberg@enquirer.com