Pause Before Hitting "Send"
Just about every day since the digital revolution began, plaintiffs, regulators, prosecutors and members of Congress roll out damning and spicy quotes from email exchanges between employees as the basis of their litigation, investigation, charges or public hearings. And then there are voice mails, Facebook, mySpace and Linkedin messages to consider as well as those quicky emails and texts sent from blackberries and cell phones. We all remember them…the government convictions in recent years based almost solely on email or the love notes to a fellow employee that result in the boss getting fired. What can any CEO or general counsel do to protect against these inflammatory emails, taken out of context, often making assertions and not stating facts, from becoming the basis of legal action against his or her company and employees?
One simple solution is training and educating employees on how their words in emails and any electronically sent or saved message do matter. These are not “private” messages and once on a computer, particularly a company computer, they are discoverable and usable by your adversary in any way they want, either as evidence in the legal arena or to inflame customers, shareholders, or potential jurors in the court of public opinion. Most people don’t write emails thinking they will be blown up by an adversary, scrutinized for meaning and interpreted to their best advantage. What you meant to say may not be much of a defense against what you did say in black and white in front of the jury.
While people pour over their transaction documents and briefs, rarely do they take that care over emails about those same documents—emails that can be much more telling about motivation and which can be more easily found and discoverable. Why? Because emails are electronically searchable and often sent around to a wider array of people, including non-attorneys or others outside the company,, that could amount to a waiver of privilege.
Therefore the best way to manage a crisis from a damning email is to prevent that damning email from being written in the first place. Employees need to be told, “Unless you want this email blasted on the front page of the New York Times, or blown up on a placard in front of the Senate Judiciary Committee, the Golden Rule should be : Don’t hit send.”
