CHICAGO - Companies that want to keep proprietary information private and avoid an "information meltdown" should they become involved with litigation ought to begin by examining their use of e-mail, according to Don Tarkington, partner in the Chicago-based law firm of Novack and Macey.

"Every business needs to protect itself from what can happen during litigation," Tarkington says. "The explosion in the use of e-mail and electronic data storage has exposed companies to risks they do not even realize are present. Nobody likes to think about the prospect of engaging in litigation, but companies that don't look at these risks before litigation starts will find that they're too late.

"Prevention is key," Tarkington warns, "and that has to start early."

Today's electronic communications make companies especially vulnerable, Tarkington explains, because recent court rulings have opened e-mail to litigants engaged in discovery - the information-gathering process of building a legal case. And where discovery involves electronic communications, from e-mails to website interaction to online instant messages, many courts are allowing the parties access beyond mere print-outs.

Accessing a company's electronic files means accessing its metadata - a wealth of background information on each file. The date and time of a document's creation, when and how it was revised, who received copies and the changes they made: All this and more becomes fair game in electronic discovery.

And deleting a file doesn't come close to erasing it - or its history.

"These things are still readily available in the computer if you know how to look for them," Tarkington says. "When you become involved in litigation, you want a lawyer who knows what to ask for: various kinds of files, where back-ups might be stored, the presence of central servers."

What about protecting information when you receive a discovery request? "You've got to plan ahead and institute company-wide policies on how e-mail should be used," Tarkington says. "But you've also got to realize that once litigation has started, it's too late to rethink your e-mail policy. That's why it is so critical to establish policies sooner rather than later."

For an idea of how all this affects litigation, Tarkington says, consider the Microsoft case. "The government was able to use old e-mails to undermine the credibility of Microsoft's witnesses and, eventually, its entire case," he says. "Over and over, the government came up with e-mails that seemed to contradict crucial Microsoft testimony."

To avoid such a possibility, Tarkington says, "every company must educate its people to be much more circumspect in the way they write e-mails. E-mail is not a fleeting word that disappears into thin air. It's not a casual conversation, like a phone call."

Rather, he says, "everyone has to think of e-mail as a written communication that's every bit as permanent as a memo or letter. That means being more formal - and more careful. Hyperbole, exaggeration and even jokes can be made to appear sinister when a dispute arises."

A company-wide policy on electronic communications is essential, Tarkington says, and is easy to devise when based on how a company already handles paper. "Out of sheer necessity, because there's only so much room, eventually you'll discard some files," he says. "But people never have to do that with electronic files, because you can always get another disk. So you've got to train people first to file electronic communications -- so the information can be managed -- and then to periodically go through and discard files that are no longer used, according to whatever protocol you've established."

Founded in 1984, Novack and Macey is a litigation firm that specializes in complex commercial cases. The firm has successfully represented clients in a wide variety of litigation disputes, including matters involving banking contracts, class actions, energy, RICO, securities, real estate, partnerships and close corporations, unfair competition, insurance coverage, environmental matters, business torts and employment-related issues.

Novack and Macey attorneys have honed their skills in courtrooms, mediations and arbitrations nationwide. Clients include corporations, institutions, investment ventures, partnerships and individuals.

For further information about corporate electronic security, please contact Don Tarkington, Esq., at 312-419-6900.