By: Jackie Cooper
In light of the almost daily revelations about the United States’ comprehensive “data collection” activities, we might all benefit from a refresher on EMAIL 101. (If you do not know what I am talking about, Google “Edward Snowden” and say goodbye to the next three hours of productivity and hello to serious doubts about keeping your FaceBook page active.)
The obvious appeal of email is the ease of use. There is no need to pick up the telephone, much less to walk down the hall, to communicate. Type and click send. Email is an amazing tool for communication and documentation and we would be lost without it. Most of the time, an email is read, filed, deleted, printed, shredded, or occasionally covered in coffee rings. It serves its purpose and nothing else happens. However, there are times when the story has a different ending.
Careless, flippant or incorrect emails are frequently the jackpot in business and litigation. Email feels informal so people do not take it seriously. We email about gossip, complaints, politics, jokes or other topics that would never be discussed in the breakroom, much less the boardroom. We are often oblivious to the fact that the subjects of our banal, uninteresting emails may become the critical issue in a business dispute or litigation. Do not think for one minute that your email cannot end up attached as an exhibit to a motion filed in a lawsuit. I actually attached some emails to pleadings last week.
Not to mention the false sense of security of the “delete” button. Everyone should understand by now that deleting an email does not necessarily mean that it cannot be found. I have worked with forensic IT companies whose bread and butter is hunting for “lost” emails. They may not always find what they are looking for, but sometimes they do.
Some of the problem emails are more obvious than others. You recognize them when they pop up on the screen. You might shake your head or face-palm, but your first thought is always - “Seriously? He put that in an email?”
On the flipside, surely we have all experienced sender’s remorse. It is marked by the sudden-onset of a constellation of flu-like symptoms, ie. profuse sweating, tachycardia, pounding headache, wave of nausea, etc., that hits immediately after you realize that you sent the email to the wrong person or perhaps regret using that colorful language. The finality of the simple act of hitting the enter key is overwhelming in that moment. There are no do-overs in email.
Problem emails, whether obvious or subtle, make highly effective exhibits and demonstrative aids to hold up in front of the judge or the jury. Imagine how your email will look on a full-color, poster size blow-up on an easel in the courtroom.
These appear to be fairly benign emails, but in the right context, they could be toxic to a claim or a defense:
“Sue rolled in around 10 a.m. again today. Must be nice to be the boss’s favorite.”
“I’m having lunch with Bob today. He is thinking about making a move and bringing his clients with him.”
“I hate this job so much. One day, I swear….”
The first email will be Exhibit A in a sexual harassment lawsuit. The second one will be Exhibit B in a dispute about violation of a non-competition agreement. As the sender or recipient of either, you will end up on someone’s trial witness list. The third one… well… you are safe in assuming that the third one will pop up after you have made a huge mistake that cost your client money. The fact that you were just having a bad day is irrelevant. Your email will mean whatever the lawyers tell the jury it means.
Before you hit “send,” picture that email in hands of your assistant, your boss, her boss, your co-workers (friendly and not-so-friendly), your spouse, your mother-in-law, your competition, your kids, your client, and last but not least, 12 jurors.
Here is a recap:
- No expectation of privacy with work email
- Work emails are not personal property
- You never know who will access it, now or in the future
- Delete may not disappear that email, it may just make it really expensive to find later
- Often includes more info than the sender intended - recipient trail and metadata
- May end up in your boss’s brother’s best friend’s “Saved” file, but not in yours
- It can be used as evidence in court or arbitration
- It can make or break a claim or a defense
Now here are a few suggested guidelines to keep in mind when you are communicating by email:
- If you can say it on the phone or to someone directly and you do not need to document having communicated it, do not send an email about it.
- If you do have to send an email, keep the recipients to a minimum. Consider whose action or response is required.
- Carefully review the “To” lines to ensure you are sending it to the correct recipients.
- Use as few words as you need to use to convey your message. (This is true for all forms of writing.) The less you say, the less you say something you, or someone else, might regret.
- Avoid forwarding internal emails to clients, vendors, or other contacts where possible. Cut and paste the information you want to pass on into a new email. If you must forward an internal email, review every line and confirm that any confidential, privileged or otherwise protected information will not lose that status once it is outside your office.
- Write like a grown-up. Do not use text language or punctuation faces. Laziness in email-drafting either leads to unintelligible emails or makes you looks ridiculous and not credible. Either way, it ends badly.
- Edit the email before you send it. Then edit it again. If it is lengthy or important, consider printing it out to review on paper before you send it. We review letters before we sign them. Email is no different.
- Work with your IT department to implement an email retention, storage and destruction policy before you need one. It is much easier to explain having deleted emails pursuant to a policy rather than just because you felt like it.
Email can be your best friend or your worst enemy. Take it seriously and spell-check.