Recall Message! Do Yourself (and Your Employer) a Favor and Sharpen Your Email Game

BY THOMAS BERNDT

March 2022

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This isn’t the 1990s: Email isn’t a new technology. By now, we all know that our work emails aren’t private, and most of us exercise some discretion in deciding what to “put in writing” in our business communications. We’ve heard horror stories of incriminating emails turning up in business lawsuits. Those alive in the early ‘90s may remember the U.S. government’s antitrust suit accusing Microsoft of using monopolistic practices to kill rival web browser Netscape. The ruthless tone of Microsoft’s internal emails, using phrases like “knife the baby,” “take away their oxygen supply,” and “crush them” not only made headlines but changed the tide of that case.

Yet, despite our awareness of these risks, the problem persists. Time and again, bet-the-company lawsuits turn on the content of internal work emails. And it’s not just so-called “smoking gun” emails where an employee admits wrongdoing. More often, the key emails are seemingly innocuous co-worker communications that, due to their poor wording, are taken out of context and made to look malicious, heavy-handed, or insensitive.

Let’s examine how emails are used in litigation, with hopes that, through awareness, employees can better protect themselves and their employers.

LITIGATION IS MORE INTRUSIVE THAN YOU THINK

Everyone knows that employers can monitor employees’ emails and that emails can be forwarded beyond their original recipients. But some may be less aware that competitors or customers can obtain internal company emails through litigation, for instance. And owners of closely held corporations often feel a false sense of security that they have more control over their work emails than they actually do.

But anyone familiar with business lawsuits knows that email is the predominant form of evidence. In civil lawsuits, each side is entitled to “discover” the evidence the other side plans to use at trial to prove its case. This is typically done by each side sending the other “requests” for documents relating to certain relevant topics. Search terms are often applied to email inboxes to isolate and identify relevant emails. After the company’s attorneys review the captured documents, the company must produce nonprivileged, relevant emails to the other side, even if they contain proprietary business information. Even trade secrets are “discoverable.” While courts may restrict the parties themselves from seeing each other’s proprietary information or trade secrets, the lawyers, judge, and jury will have access to this information.

If your company is sued, plan on the other side’s lawyers perusing your emails, looking for ways to make you look bad. Don’t give them the opportunity. Here are a few ground rules that may help you avoid sending regrettable emails:

  • Remember that email has replaced formal letters and inner-office memos. Treat them that way.
  • In deciding whether an email may be problematic, assume others will read it without context and, in a lawsuit, with the aim of twisting it to look worse than it is.
  • Email is not the place to vent or blow off steam. We all feel the need to commiserate or brighten long workdays with moments of levity, but do it in person or over the phone.
  • Resist the urge to attribute fault, especially where you don’t have all the facts. It’s often not necessary, can be divisive, and can come back to bite you.
  • Be kind. In addition to being a search for truth, every lawsuit is a morality play. Juries punish those they perceive as bad actors. Be wary of groupthink or an us-versus-them mentality. Businesses are social groups, after all. And our need to belong can lead us to dehumanize outsiders, whether they be competing businesses, difficult customers, industry regulators, or the like. In short, social forces can cause good people to say (or write) ugly things.
  • No matter what you’ve heard, merely copying a lawyer on an email does not make it attorney-client privileged. For the privilege to apply, you must have an attorney-client relationship and be seeking legal advice—as opposed to mere business advice. And any privilege that may otherwise apply can be waived by sharing the communication with third parties who are not necessary to the rendering of legal advice.
  • Be especially careful with sarcasm or exaggeration for comedic effect. Even if the recipient knows you’re not serious, the humor may not translate to the courtroom.
  • Text messages are not a sanctuary. Lawyers in civil lawsuits are increasingly requesting to search not just the other side’s emails, but their text messages, too. And if there’s reason to believe someone discussed company business via text, judges will often allow it, even if the messages were deleted, forcing the plaintiff to subpoena the text records from a mobile provider. This exposure applies equally to other messaging services like Slack or WhatsApp.

A WORD ABOUT DELETING: [SPOILER ALERT: IT IS NOT REALLY DELETED]

Once sent, emails leave your control. Our email inboxes give us the illusion of control by allowing us to delete or even “double delete” emails. Don’t be fooled. Deleted emails often still exist on the company’s servers and can be recovered and produced in litigation. The act of deleting leaves its own fingerprints, even if you use special software that purports to permanently delete data. It’s not uncommon for a litigant to retain an expert to forensically search the other side’s computers for signs of document destruction.

Courts refer to the destruction of evidence as “spoliation.” To deter spoliation, courts can impose extreme sanctions, including dismissal of a lawsuit, entry of a judgment, or imposition of fines. Considering these penalties, it simply doesn’t pay to try to delete bad emails. The “cover-up” will almost certainly lead to worse consequences than the “crime.”

Times are changing, and sloppy emails at the workplace are about as popular as other 1990s memories like dial-up internet, brick phones, or Dawson’s Creek references (present reference excepted).

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