WIN Magazine - Spring 2012 - (Page 32)
FEATURE: On the Cutting Edge of Technology
TAGGERING” IS PROBABLY the only way to describe statistics on emails. There’s little doubt emails are an ever-present and everyday part of the corporate life of a managing general agent (MGA). They’re not going away any time soon, either. Most intriguing about the accompanying chart is this: it does not include text messages. There are about 2.5 billion of those sent each day, an increase of 107 percent since 2010. Generally speaking, heavily regulated industries such as finance and insurance are among the heaviest email users. Studies confirm that MGAs, as intermediaries, are at the forefront of the insurance industry in the volume and size of emails sent and received. We live in a 24/7 world, too. The number of emails opened by mobile devices exploded by nearly 50 percent in 2011 alone, according to a study by Knotice. IPhones, iPads and Android devices are all leading the charge toward responding to emails in real time. So what’s the big deal? Beyond the obvious IT challenges and expense that e-mail represents, why do we in the wholesale insurance community care about the size and number of emails we send and receive? One observation comes from a presentation on email liability exposures for wholesale insurance agents and insurers that AAMGA Executive Director Bernd G. Heinze gave recently. In asking the audience “What does the E in email stand for?” Mr. Heinze heard the conventional answer that E stands for “electronic.” However, he noted, quite accurately for today’s environment, that there might be a better answer – suggesting that when writing an email and then hitting send, we must think in terms of the E standing for “exhibit,” as in “Your honor and ladies and gentlemen of the jury, plaintiff moves into evidence email exhibit 157.” That’s actually a pretty accurate recitation of law in virtually every state. For the most part, emails are business records that can be easily used for and against a company. Experience tells us that emails have exceptional evidentiary value and usefulness as business records. They are legally as useful, if not 3 2 | v i e w t h i s i s s u e a t | www.aamgawin.org
Liability exposures and how to prevent them
BY RICHARD S. PITTS VICE PRESIDENT AND GENERAL COUNSEL, ARLINGTON/ROE & COMPANY
• 3.1 billion emails/day in 2012 • 113 trillion/year • 3.59 million/second • 3.8 billion emails/day by 2014 Source: The Radicati Group, Inc. more so, than formal letters on company letterhead used to be. An illustration of this principle is found in the Uniform Electronic Transactions Act (UETA). In the late 1990s, most states adopted this law, which has as its main goal to facilitate electronic transactions and permit parties to do business electronically. The UETA is simply an expression that electronic transactions by corporations and electronic records that the corporations keep should have the same legal effect and enforceability as paper records and handwritten documents. Essentially, the UETA and laws like it have removed barriers to the legal transaction of business via electronic actions such as email. So the law hasn’t lagged too far behind the explosion in emails in terms of how they are treated as business records and evidence. Likewise, rules regarding how parties find out information from the opposition in lawsuits – known as pre-trial discovery – have also kept pace with emails. Most states have followed the lead of federal courts in enacting a series of rules which require parties to a lawsuit to make provision for searching, retrieving and preserving electronic records, such as emails. Based on case law which is developed underneath the standards, it is important that a company be able to: • Preserve all of its internal corporate e-mails that are relevant to a particular dispute; and • Say with a reasonable degree of certainty that those documents have not been destroyed. The consequences of not doing so can be severe and can include instructions to the jury to presume missing e-mails would be adverse to the party who destroyed them, or for possible attorneys fees, or perhaps even worse.
Table of Contents for the Digital Edition of WIN Magazine - Spring 2012
Cover Story: The Catlin Arctic Survey: How an Insurer Decided to be in the Forefront of Environmental Research
The Year in Review: Natural Catastrophes in 2011
The Impact of Climate Change: An Interview with Ernst Rauch
Wholesale Agents & Insurers Embrace Tablets
Technology@Lloyd’s: Closing the Gap in 2012
A Unique Perspective: An Insight on the Technology Transformation
An Email Commentary: Liability Exposures and How to Prevent Them
Marketing on the Internet: New Opportunities for Wholesale Insurance Agents
Applying “Moneyball” Principles to General Agencies: How Much Value is Trapped Within the Back Office?
IN THE WIN-NER’S CIRCLE: A Discussion with Tom Kuzma
INDEX TO ADVERTISERS / ADVERTISERS.COM
WIN Magazine - Spring 2012
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