In its most recent issue, the journal Science included a piece that we in the information management business would categorize under the heading “e-mail compliance” because of its focus on the line between business and private communications.
The matter in question has to do with BP’s request for 50,000 pages of information related to the Deepwater Horizon oil spill from the Woods Hole Oceanographic Institute, which helped prepare estimates of how much oil was spilling from the well following its infamous failure. As reported on boston.com in an article last week, BP has suggested in legal documents that WHOI researchers erred in their calculations. While the institution was willing to provide documents, computer code, reports, and raw data, only upon threat of a contempt citation that could threaten its other work did it release some 3,500 private e-mails relating to what Woods Hole researcher Richard Camilli calls the “scientific deliberative process” used to develop those estimates.
What’s at stake here – beyond the familiar debate over precisely what constitutes “private communication” in a business context – is whether extending the reach of legal discovery to e-mails among researchers as they consider their most likely findings can hamper the free exchange of ideas and undermine the integrity of the process.
According to boston.com, Camilli, who co-wrote the Science article, reported that colleagues at other institutions have told him the BP experience would make them reluctant to aid in a similar way because their private communications could be taken out of context. “This is the kind of chilling effect on scientific research that is detrimental to society,” Camilli said.
The underpinning of this controversy is, of course, money, for the more oil that is determined to have spilled, the greater BP’s financial liability. What is worrisome to this observer is that while the company may not be targeting scientific deliberation per se, it did release a statement in which it said that “the Court found, among other things, that there was a demonstrated need for the materials because there was no other source for them.”
So does this mean that private communications are fair game when there are no public records to be subpoenaed? Maybe we feel okay about this in the context of financial fraud, where personal e-mails may be the only hard evidence to be found – and maybe we don’t, because we worry about a general erosion of privacy. But to me, the question takes on added significance when applied to situations like scientific research in which the free exchange of ideas – even, and maybe especially, controversial ones – is central to furthering the cause.
I’d love to know what you think, please feel free to leave a comment, Tweet this piece with your take in it, and/or e-mail me directly at steve@hollygroup.com. Thanks!
Wow, put on the fire-proof gloves for this one Mr. Weissman! I think you missed an opportunity to further define so-called “private” emails here. There are private emails that deal with things outside of work, but there should be no emails labeled as private if it in the course of your business when communicating with colleagues, vendors, management, etc. I don’t think we should start blurring the business process and responsibility by allowing companies or organizations to further define some business records as “private” information and not subject to discovery. If the person generating the so-called private emails was concerned about the contents, then maybe they should not have written it in the first place. They have telephones for such stuff, but be cautions of VOIP recordings that will also be subject to discovery.
Interesting you should mention the telephone, as the article does point out how such communication used to take place in that very manner!
As far as defining what is private and what isn’t, and who gets to decide, well, I started down that road and decided that’s a post for another day. Heck, I could write a book … or teach a class!