Email communication is vital to just about every business. But in-house counsel know that what employees write in an email can come back to haunt their company.
Womble Carlyle attorney Meredith McKee and Carolinas HealthCare System Associate General Counsel Sarah Coble recently outlined these potential problems and provided solutions in a recent Webinar discussion. McKee and Coble’s presentation, titled “Avoiding Emails that Hurt or Embarrass Your Company,” took place July 21st with members of the Association of Corporate Counsel’s Compliance & Ethics Committee.
Email volume increases every year. The typical business person receives and sends more than 120 emails a day, and many are fired off without a great deal of reflection and based on incomplete information. But, as McKee said, “The problem is that emails last forever… We routinely find emails coming out from 10 years ago.”
Confusion about how emails are stored, and how attorney-client privilege works, is commonplace in many offices. “All of that creates a false sense of privacy and a lack of understanding how broad the email sweep and collection is going to be if you end up in litigation or an investigation,” McKee said.
Even emails that aren’t relevant to the substance of some future dispute may still be subject to review during discovery. So embarrassing and private information can reach an audience well beyond that the employee originally intended.
Avoiding Email Problems
So what should in-house counsel and company leaders do? For starters, Coble said businesses should review the “things we learned in kindergarten – or would’ve learned if e-mail had been around.” For example, employees should steer clear of foul language. Also, Coble said that if something requires a qualifier such as “I probably shouldn’t say this, but…” or “This is probably inappropriate, but …,” then it doesn’t belong in an email.
These are the simple problems to correct, Coble said. But there are trickier pitfalls as well, including:
- Attorney/client privilege issues. Coble said, “Not everything sent by or received from a lawyer is privileged…It is not Harry Potter’s invisibility cloak.” Under North Carolina law, for example, typically communications are not privileged unless they are made in course of giving or seeking legal advice for a proper purpose. In other words, the simple fact that a lawyer is copied on a business email doesn’t necessarily shield it from discovery.
- Humor/sarcasm. No one wants a humorless workplace. But employees should take care to ensure that humor is appropriate. Of course, jokes based on race, sexual orientation, national origin, etc. absolutely are off-limits. But, McKee said, employees should also avoid poking fun (however harmless) internal business processes, supervisors and governmental authorities. If such emails someday become public, those jokes can be highly embarrassing to the sender and the company.
- Comingling business and personal email. “Many companies have formal policies against this, but employees may not understand the consequences of doing so,” McKee said. One of the best ways in-house counsel can serve their company is to paint employees with a very clear picture of the possible consequences. If an employee uses a personal email account for work-related purposes, then all emails on his or her personal account may become fair game for collection and review during litigation or an investigation.
- Texts/instant messages. “Those can be even more dangerous than emails,” Coble said. “As you slide down the formality scale, people tend to be less careful.” However, a text/instant message doesn’t disappear just because a person closes it. Many companies store those messages for long periods of time. A prime example is the NFL’s recent “Deflategate” controversy, in which texts sent between New England Patriots’ employees became public – and the fodder for an investigation.
- Contentious communications. It’s easy to say something regrettable in a dispute with an angry customer, opposing party or other adversary. But take a second to think it through before hitting the send button. Coble said that even if a company isn’t directly involved in a dispute, it still can receive a third-party subpoena for emails. She said in-house counsel should advise executives and employees to “stick to the facts, and not put in their own opinions or colorful commentary.”