Safe Communication: Guidelines for Creating Corporate Documents That Minimize Litigation Risks

Emails and the workplace go together like spaghetti and meatballs. Sure, you can probable get through part of your workday without it, but, eventually all workers dedicate some time in their day to check and reduce that endless growing inbox. In the day-in-age where sending work communications can happen with just a few quick key strokes from a cell phone, the workforce needs to realize the legal ramifications of circulating “bad” documents.

When thinking about “bad” documents, most people picture a “smoking gun” email that completely seals a legal victory for the company’s opponent. While those certainly fall into the “bad” documents category, the list does not stop there. Seemingly innocuous pieces of communication sling through company servers everyday carrying potential legal implications. In fact, both the sender and the receiver of this document may be utterly unaware that the communication even exists or that it is even a “bad” document until that fateful day when in-house counsel comes knocking at their cubical.

The Creation and Risk of “Bad Documents”

Unfortunately for many large corporations, “bad” documents are created practically every day. An email sent between two co-workers casual bad-mouthing a supervisor. A text message between two executives on company cell phones expresses legal concerns about an edgy, new business plan. Even a note written on a post-it stuck to a file suggesting changes to a company’s policy.

These documents may not seem bad, but in the hands of an opposing attorney these cold hard facts can turn into fodder used to swing a judge or a jury to their side. Often the drafters of these documents tend to believe that they are providing the company with some value to the business. For example, an engineer notices a potential liability in a design so he informs his supervisor through an email. However, the engineer’s lack of legal knowledge and misuse of legal vocabulary in the communication may later implicate the company with notice of the problem when a lawsuit arises.

Ways to Promote Safe Communications

Keeping the creation of bad documents to a minimum should be a high priority for all businesses. With the extensive reach that e-discovery has today the odds that “bad” documents will be uncovered are extremely high. Safe communications in the workplace can help reduce future legal implications caused by these preventable documents.

Here are some ways for companies to promote safe communications:

1. Step Away From the Keyboard

In the 21st Century, it is common practice for people to leave an electronic trail of notes, thoughts, and opinions. With a keyboard perpetually holstered at the hips of the masses, using text messaging or email when an event arises comes as a natural instinct. When employees fail to reject this initial response, the opportunities for “bad” documents skyrocket. Safe communications can be cured in these types of situations by encouraging phone calls or in-person meetings when employees face certain concerns about work products or activities. Even video conferencing these days provides less of an electronic trail than email and text. By stepping away from the keyboard, companies can reduce the potential that an email or text will come back to bite them in court.

2. Writing Accurately

The informal nature of email, and even more so text messaging, tends to promote a lackadaisical approach on the part of the document drafter. While the sender may believe that he or she is being flippant or sarcastic when creating the communication, if the message is re-read several years later out-of-context, the inaccurate message could pass as valid truth. By training employees to write accurate emails and text messages the inadvertent creation of “bad” documents may be avoided.

3. Steering Clear from Admitting Liability

As a lawyer, the word liability carries an excessive amount of weight. Non-lawyers tend to throw around this word without fully understanding the legal implication that is associated with the word. In order to avert “bad” documents where the sender admits liability, companies should tell employees to steer clear from any admissions of liability (or from using the word liability completely) when drafting emails or text involving company matters.

4. Limit Dissemination

When it comes to emails involving high-level issues, there is a tendency to treat the “CC line” like a birthday Evite: the more the merrier. Whether people do this to cover their own behind or to showcase their own competence, this practice tends to create opportunities for “bad” documents that are nearly impossible to eradicate. Teaching employees to limit an email’s recipient list to only those that are absolutely necessary to solving the issues is pertinent to containing any “bad” emails that may arise.

5. Address Bad Documents Immediately

Turning a blind eye and hoping that “bad” documents will be buried away from everyone’s memory is never a good strategy. If a “bad” document crosses your inbox, addressing any issues it raised is an essential first step in limiting liability. Dodging headaches caused by “bad” documents can be as easy as teaching employees to remedy any discrepancies or inadvertent admissions to liability in potentially “bad” documents before the communication even becomes the subject of litigation.

Further Resources

Through the education of safe communications, employees will be able to learn some simple cautionary steps that will protect the company from unnecessary risks while doing their jobs enthusiastically and conscientiously. To learn more about e-discovery and corporate litigation, search the legal professional pages on FindLaw.