For better or worse, almost all electronic communications are discoverable and electronic communications can never truly be deleted (or so we are told by those knowledgeable in that world). This means that anything written in an e-mail will be viewed by others in the context of any lawsuit or public records request.
In almost every case that we have tried in recent years there have been embarrassing or incriminating e-mails that we have found during discovery that helped prove our theory of the case and generated successful results for our clients. At the risk of educating the opposition, here is a list of things nobody should ever write in an e-mail.
1. Inside Jokes:
While office humor is often appreciated, “tongue-in-cheek” or pithy comments about customers or adversaries can look very bad when read later. Remember that e-mails rarely capture tone or sarcasm like a face-to-face conversation. Save any efforts at humor for a conversation around the water cooler.
2. Something Emotional or Angry:
While venting may occasionally be good therapy, it is rarely appropriate for an e-mail. Sending an e-mail that is angry, emotional or intimidating in tone is a recipe for disaster. Think twice before you press “Send”.
3. Anything You Do Not Want Your Mother (or a Judge) to Read:
While perhaps just common sense, this is perhaps the most important thing to remember. Ask yourself if you would be proud to have others outside your organization – or not copied on the e-mail – read the thoughts or opinions expressed.
If you remember that last rule, you should never have to confront any embarrassing or harmful e-mails in any subsequent lawsuit or investigation. And you should be able to sleep better at night.