LETTERS

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For the Record

I feel I need to clarify the record on two points on which I was quoted in your recent front page article on the year 2000 problem ("Covering Your Assets," Oct. 23).

In that article you quoted me as recommending, in a presentation on year 2000 legal issues, that vendors should "renegotiate their contracts to void their year 2000 duties." My actual view on that issue is just the opposite.

As I thought I had explained clearly in response to a question from the audience, if a vendor has year 2000 contract obligations to a customer, the vendor can hardly expect that the customer will knowingly waive those obligations, and can hardly hope to simply "slip by" a legally binding waiver without the customer's knowledge and actual consent. Any attempt to do so would be legally worthless, as it should be.

I also want to be sure there is no misunderstanding regarding my remarks on the dangers of internal memos and e-mail messages in the year 2000 context. Most companies today have a policy of disposing of e-mail messages within a relatively short period, and I pointed out that a company that has such a policy should certainly not make its year 2000 remediation effort an exception to that policy.

The purpose of a sensible document retention policy is not to hide the truth about what has happened in a given situation, but (among other things) to help ensure that the record of the company's actions is not distorted by hastily considered, poorly worded, or inaccurate internal message traffic.

For any company that is attempting in good faith to fix its year 2000 problem, the risk presented by internal memos and e-mail messages is even greater than it is in other, more routine business contexts. Many memos on year 2000 issues will be written hastily in the heat of the moment or in an atmosphere of real fear.

Many will be very self-serving, written by individuals who know that their jobs or reputations are at stake. Others will be written by individuals who lack complete information as to why certain remediation approaches are being taken. (It is acknowledged, for example, that in most cases companies will have to resort to suboptimal approaches to fixing their year 2000 problems and it can be expected that there will be internal messages and memos pointing out - accurately - the defects of such approaches.)

What companies must do, as I made clear in my presentation, is to ensure that the overall record of their year 2000 remediation efforts fairly reflects the rationale for the responsible compromises and tradeoff decisions that have been made.

Any company that allows e-mail messages written in fear, haste and ignorance to be the only written record of its year 2000 remediation effort is doing a disservice to itself and those who have worked hard and in good faith to fix the company's year 2000 problem.

Robert J. Kenney Jr.
Partner
Hogan & Hartson LLP
Washington, D.C.