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LitigationProofing, LLC President Eric Rosenberg (left) awards January "E-mail of the Month" Prize Highlighting the Importance of Smart E-mail Skills to Jon Deveaux (right).

Maine School Superintendent Suffers Embarrassment as LitigationProofing, LLC Awards January "E-mail of the Month" Prize

January 16, 2006 - LitigationProofing, LLC, a New York-based consultant to major corporations and law firms on best practices in electronic communications, has awarded its January, 2006 "E-Mail of the Month" prize for identifying a problematic electronic communication drawn from the public record. This month's prize relates to an embarrassing e-mail sent by a school superintendent to a colleague.

The prize goes to a nationally recognized expert on adult illiteracy and former Executive Director of Literacy Partners, Jon Deveaux. Mr. Deveaux submitted an example drawn from the public records of the State of Maine, where he has a vacation home.

In this prize-winning example, reported in the Norway Advertiser-Democrat newspaper in Maine on November 10, 2005, a superintendent of a school district in Maine sent an e-mail to a colleague regarding a meeting. At the end of the message, the superintendent mentioned how he would like to "punch the lights out of" a specific union representative. When the e-mail was ultimately made public, a "really, really, embarrassing" situation resulted for the superintendent, according to the Advertiser-Democrat report.

Mr. Deveaux, who currently teaches reading at a middle school in the Yonkers, New York, school system, was awarded a "Litigation Proofing" Native American-style drum—LitigationProofing's preferred method of communication because it leaves no trace.

"The moral of the story is: anytime you touch your fingers to the keyboard in states like Maine, expect it to become part of the public record," explains Eric M. Rosenberg, president and founder of LitigationProofing.

Maine has a very strong public records law and a long tradition of full public participation and disclosure in state and local government. What's more, according to the Advertiser-Democrat, the Maine Freedom of Information Coalition has determined that e-mails are generally included in the definition of "public records."

"Public officials need to think long and hard before they hit the send button, reflecting on the fact that their e-mails could easily wind up in the newspaper," Rosenberg continues. "In this case, even though the writer likely meant no harm, he clearly should have considered his words more carefully. Quite simply, this demonstrates how poorly e-mail performs as a medium for communicating emotion, rather than plain, unadorned facts."

As an interesting aside, the Maine Freedom of Information Coalition has said that if the chairman of a board of selectmen in Maine were to send an e-mail to a group e-mail address that included the entire board, the chairman thereby would have called a quorum of the board of selectmen together, constituting an unnoticed and therefore illegal meeting of the board in cyberspace. According to the Advertiser-Democrat, the Coalition argues that such a group e-mail is the same as "shutting a door and locking the public out." Once again, the lesson is: beware of what you write and to whom you write it.

For bringing this example to LitigationProofing's attention, Mr. Deveaux has been awarded a LitigationProofing drum. As an ancient method of communication, the drum is a reminder that the only way to assure that your modern communication will not become a permanent public record is to tap it out on the drum rather than upon your computer keyboard.

» Prior Awards

To highlight the importance of smart, well-trained e-mail skills, LitigationProofing will award an appropriate prize of nominal value at the end of each month for the best submission of a problematic, but previously publicly disclosed and available e-mail. Contestants may submit entries by sending them to DO NOT SUBMIT any e-mail that is not from publicly available sources. Just as is true in much of what happens in litigation generally, the decision of "Judge" Rosenberg awarding the prize will be subjective and final. Here's an example from the recent securities analyst cases: