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Article: September 2019: “Do’s” and “Do Not’s” for Electronic Communications and Litigation

Business Litigation Reports

Litigators know that the best ammunition for their case usually comes from the opponent’s electronic communications. Why? Because all too often, management and employees simply cannot resist the urge to send their off-the-cuff reactions. And many write these messages under the entirely mistaken belief that all traces can be erased with a simple deletion. This creates a false sense of security for those communicating electronically, frequently leaving an easily discoverable paper trail of embarrassing or damaging statements as a result.

It is a given that you must always faithfully comply with your obligations to preserve and produce discoverable evidence. But you never have an obligation to unnecessarily or unwittingly create evidentiary bombshells in the first instance. Fortunately, it does not take much effort to drastically reduce the risk that your messages will come back to haunt you, your colleagues, or your clients. Simply stated, the key is to be proactive and to give some thought to what you are doing before writing a message or responding to one.

The following list is not exhaustive. But it identifies many important factors to keep in mind prior to hitting send. It may not always be easy to adhere to the below principles, and it may seem tedious and unnecessary to do so. But it can be the difference between having your message blend in with the other items produced in discovery or having it marked “Exhibit A” at a deposition or trial, where you may be subjected to hours of embarrassing questions.

Do’s

  • Assume your email or message WILL BE made public.
  • Assume nothing is ever deleted forever.
  • Say only what you mean, and mean exactly what you say; your written words may be read out of context in the future and will be taken at face value.
  • Ask yourself if you would be embarrassed if your mother or the New York Times saw your message.
  • Be thoughtful; think before you write, edit before you send.
  • Think about who you want to be “cc’d”; be careful when copying new people on a chain.
  • Keep your messages professional and respectful.
  • When discussing personal matters, start a new message chain with a new subject.
  • Check that your attachments are correct.
  • Check that autocompleted email addresses are for the intended individuals.
  • Use phone calls and in-person meetings instead of emails or other written messages to discuss sensitive matters.
  • Treat voicemail just like email, because most voicemails are now sent as attachments to email.
  • Forward messages to those you want to be aware of an email chain, but do not want to directly include in the chain.
  • Understand that text messages, intra-office messaging apps, and social media messages can be used in litigation and made public just the same as emails.
  • Develop and enforce message retention policies for non-email messaging programs, including text messaging, social media, and cloud-based applications.
  • Label messages as subject to the attorney-client privilege if there is a reasonable basis for doing so.
  • Where there is a potential dispute on the horizon, limit written messages to the greatest extent possible.
  • Understand that your personal devices are subject to discovery in future litigation.

Do Not’s

  • Assume a message is unrecoverable simply because you have deleted it.
  • Use sarcasm, hyperbole, speculation or make jokes; tone and context are often lost in written messages.
  • Speculate about the cause of a potential problem or admit liability.
  • Use offensive, inflammatory, profane, or unprofessional language.
  • Write “delete this message after reading,” “it would be best to talk by phone,” or something similar.
  • Make any reference to “killing the competition,” “dominating the market,” or similar concepts.
  • “Reply all” unless you confirm that each addressee should receive your reply.
  • Use messages to vent personal frustration or expose internal disagreement.
  • Include personal matters in work-related message chains.
  • Include attachments other than those strictly necessary for your purposes.
  • Add new recipients to a message chain before confirming those recipients were not purposefully excluded and need to know all the subjects discussed in the chain.
  • Use the “cc” function to add internal team members on outside distributions or use the “bcc” function to add others to an existing email thread; it heightens the risk of disclosure of sensitive information through an inadvertent “reply all.”
  • Use messaging programs that automatically delete messages or intentionally fail to record them; it creates a perception you are trying to hide something.
  • Share privileged messages with outside parties or with inside parties without a concrete need to know.
  • Send non-privileged communications on the subject of the litigation after the litigation has started.