When I was but a young peasant growing up in 18th Century France (Vive la révolution!), my good friend and colleague Voltaire (whose too-cool-for-a-last-name attitude inspired both Madonna and Prince) imparted upon me some words of wisdom that ring as true today as they did on those plague-infested streets:
“Common sense is not so common.”
Preach it, brother. Common sense, or more specifically the lack thereof, is what keeps us
bottom-feeders attorneys busy, and business is booming. With that said, not all common sense is created equal, and I’ve devised the below poll to test your ability to weed out the most dangerous of the lapses in fundamental judgment:
Options 1 and 2 are equally likely to get you dismembered, but option 3 is what should have you the most worried (FYI I love my wife and would never call her fat – just in case she’s reading). As many companies have painfully discovered, a lapse in e-mail judgment, even if temporary, can cost thousands (if not millions) of dollars. But how can a tool as simple as e-mail be so important? I’m glad you asked!
Cases today are routinely won or lost on the basis of what the parties uncover through discovery, which includes the production of documents (e-mails and other documents generated at the time of the deal/transaction/contract etc.), interrogatories (asking written questions to which the opposing attorney will carefully and arduously respond/object), and depositions (asking live questions to a witness who has had the benefit of several hours of preparation time with his attorney). Care to venture a guess as to which of these discovery vehicles present the most honest insight into the strengths and weaknesses of a party’s case?
If you guessed ‘document production,’ well, I suppose I owe you a cookie (note, this is not a binding contract). If you’re still not convinced, consider this example: Company A sues Company B for fraud, alleging that Company B falsely represented in a pre-contract discussion that Company B owned the rights to certain valuable intellectual property. Company A’s fantastic attorney takes the deposition of Company B’s representative:
Q: Did you lie to my client?
A: You’re goddamn right i did! And I ordered the code red too!
Q: What the heck is a code red?
As Dr. Gregory House says – “Everybody lies.” And when the truth could potentially cost that witness significant money, their job, etc., the motivation for lying often trumps the oath to tell the truth. Now what about the same case, but this time Company B produces an e-mail from its CEO stating that he had a phone discussion with Company A and that he’s “really looking forward to screwing these morons once they get the deal finished” (seriously, I’ve actually seen e-mails this absurd)? Have fun explaining that one in your deposition, staring into the abyss of the video camera trained on your weaselly face, your tie growing ever tighter as sweat beads begin to form on your forehead (due largely to the fact that I cranked the heat up to 100 degrees to really make you look bad).
You’ve convinced me: e-mail is important in litigation. Now what’s the simple, easy to digest takeaway? Here’s a lesson that has been taught since at least the time I was in law school: Never send anything via e-mail that you would not be comfortable seeing on the front page of the New York Times. Common sense, right? Even my weird cousin that licks stamps all day should know that, right? Well, maybe not. There is no shortage of cases out there where a company found itself in hot water over the e-mails of its employees and/or executives. Take for example a particular Standard & Poor’s executive who likely thought he was being funny at the time, but most certainly regretted e-mailing a colleague “Lord help our [rhymes with “ducking”] scam . . . this has to be the stupidest place I have worked at” when the e-mail surfaced in a recent litigation. Even tech geniuses like Bill Gates and Steve Jobs, surrounded by seas of high-priced lawyers, have been stung by embarrassing and ill-advised e-mails. The examples are endless, but the lesson is always the same – don’t press send.
And now for the horrifying truth… no, they’re not making another Twilight movie (at least, I hope not), although that would certainly be horrific. Microsoft and Apple collectively employ about 180,000 people worldwide – if their respective CEOs can’t figure out the “don’t press send” message, how can we expect the employees to get it right?
There’s unfortunately not an easy answer to that question. Like most things in life, practice makes perfect (or at least adequate), and your company’s e-mail policies are no different. A company-wide memo that “stupid, inappropriate, and/or incriminating e-mails are not to be sent – SERIOUSLY!” is likely to fall on deaf ears. The truth is that everyone at your company (from top management to the low-level employee) is responsible for implementing and following a policy designed to minimize risk and consequences for ill-conceived e-mail messages.
All employees need to understand that e-mails are potentially permanent records that could be collected, reviewed, and produced in litigation. Sarcastic comments, jokes, and opinions (on your company’s business, contracts, compliance issues, etc.) are invitations to be dragged into the litigation process and to spend an inordinate amount of time with attorneys (that alone should scare employees from ever sending another e-mail again). The importance of evaluating every e-mail for potential pitfalls is a lesson that should be conveyed in the same way that I vote – early and often.
Bad/troubling e-mails run the gamut from inane to offensive to downright devastating (seriously – please do me a favor and not admit via e-mail to fraud, theft, or whatever the other side is suing you for). Employees (that includes you, Mr. CEO) need to recognize that every e-mail they send is a potential land mine in a future, unforeseen litigation. This isn’t a lesson you want to learn/teach after-the-fact. Presentations (by counsel, management, or both), regular feedback from management/other employees, training on how to recognize potential pitfalls, etc. can be utilized to hopefully lessen the extent of problematic e-mails existing on your servers. Relying solely on an obscure instruction buried somewhere in your 200 page employee handbook is probably not going to get the job done.
If all else fails, try to remember the wise words of Herm Edwards as he spoke to the NFL Rookie Symposium: DON’T PRESS SEND.