Don’t Be Haunted By Your Emails

Brenda Myers was an employee of Wickes Furniture. When she strained her back, doctors imposed restrictions on her ability to work. A dispute between Myers and the company over these restrictions ensued, in the midst of which Myers was hospitalized. She was later terminated, allegedly for “poor attitude and behavior.”

Numerous emails sent by company executives discussing the situation were later used against the company in court. In one email cited by the U.S. District Court, a manager complained, “She went from 6 hours a day to apparently zero and in the hospital.” The manager later sent another email: “Brenda Green received a call from Brenda Myers today stating that she was told NOT to work due to her back injury. Sigh.” The word “sigh” was particularly noted by the judge in the case, who observed the “denigrating” and “negative tone of the emails.” In another email, a different manager stated: “Amazing …. how is she being paid for last week’s missed days?”

The Court also cited an email a supervisor had sent praising Myers to other employees as evidence that countered the company’s claim that Myers had been dismissed for poor attitude and behavior.

The executives at Wickes are far from alone. Electronic messages, including e-mails, social media postings, text messages and voicemail are regularly used against their authors in Court.

In another recent case, Stewart v. CUS Nashville, the defendants, operators of Coyote Ugly Saloons, were initially faced with a lawsuit from employees concerning the division of tips. However, they were later also faced with claims of unlawful retaliation, one of which cited postings company the president allegedly made to her blog about the initial case: “This particular case will end up pissing me off[,] cause it is coming from someone we terminated for theft. I have to believe in my heart that[,] somewhere down the road, bad people end up facing bad circumstances!”

A second retaliation claim in that case indicated that another company executive made the following post to his Facebook page while attending a company anniversary party: “Dear God, please don’t let me kill the girl that is suing me….” According to that plaintiff, the company executive was sitting across the bar from her when he made the post to his Facebook page. As she was “friends” with him on Facebook, the plaintiff saw the message and used it in court.

In the case of Pursuit Partners, LLC, et al., v. UBS AG, et al., UBS’s interests were not well served by the email statement of a UBS employee that he had “sold more crap to Pursuit” or the email of another UBS employee referring to UBS’s own inventory as “vomit”.

Even Microsoft co-founder Bill Gates and former Central Intelligence Agency (“CIA”) Director David Petraeus—two guys who really should have seen it coming—have had their own emails used against them.

All these messages provide made-for-trial evidence that basically didn’t exist a generation ago, and it’s not just that one big “smoking gun” statement that you have to be wary of. Admissions of facts both big and small, apologies and, as in the Wickes Furniture case, even tone can come back to haunt you.

That means that business executives (well, everyone really) should pay careful attention to what they say and write—and also whether it makes sense to say or write anything at all. Countless police dramas first taught me (and, yes, law school confirmed) that, “You have a right to remain silent. Anything you say can and will be used against you.” Often the wisest course is to say nothing at all—particularly in sticky situations.

However, I understand that you can’t always say nothing and stay in business. So, with that in mind, here are some tips for avoiding seeing your own words or the words of your employees used against you in court.

The Do’s and Don’ts of Electronic Communication

Let’s start with the do’s:

1. Do have a written electronic communications policy for your business. The policy should address what constitutes acceptable and unacceptable uses of e-mail, social media, etc. It should be signed by each employee to indicate that he/she has received and read it, and should be enforced consistently and fairly. Employees, including executives, should be regularly trained in and reminded of the importance of the policy.
2. Do protect your accounts with strong passwords. It is bad enough being responsible for your own words. It is worse if they aren’t really your words. Protect yourself with strong passwords. The best passwords are usually a long, random combination of letters and numbers, different for each account and never shared with anyone.
3. Do remember that what you write now might be read by a judge or jury later. While the audience you probably have in mind is the message’s direct recipient, it is always possible that a judge or jury might later read what you have written. Choose your words carefully. Is that really what you want to say? What are you admitting?How could that choice of words be misconstrued or used against you?
4. Do consult with your attorney. While it may not be practical to have everything you write reviewed by an attorney, certain subjects are so important or legally delicate that they merit attorney review. You may even want to have an attorney write an important message for you. Offers and negotiations with respect to large business deals, communications to or about a problematic employee, discussions of a dispute or an injury that occurred, are all examples of communications that you might want to have reviewed by an attorney before you send them.
5. Do use electronic communications to your advantage by preserving admissions by the other side. The risks and consequences associated with electronic communications cut both ways. While your primary focus should be on what you and your employees say, pay attention to what others say as well. Take a few seconds to preserve evidence that might help you, so you have it if you need it.

Now, here are the don’ts:

1. Don’t believe that anything you put into writing is “private”. Chances are that it isn’t. There are only a few types of communications that are “privileged” (meaning inadmissible against the writer in court), such as communications with your spouse, attorney and clergy—and even those only in certain instances. Most communications with your employees, partners, vendors and customers are discoverable by the other side in litigation and can be used against you at trial. Legal issues aside, certain statements might prove embarrassing to your business if made public. The safest bet is to assume nothing you write is private, so don’t write anything that you wouldn’t be comfortable with the whole world reading.
2. Don’t send emails when you are angry. People say stupid things when they are angry—they make damaging admissions, stoop to low-road personal insults and make threats they later regret. Thinking over what you have written will usually lead to clearer, smarter statements and a less caustic tone. It is rare that an e-mail truly requires an immediate response, so I strongly recommend taking a day or two to think over what you have written and how you might refine it—especially if you are angry when you first write it.
3. Don’t make or forward off-color jokes by email. So, first of all, you probably aren’t as funny as you think. More importantly, remember that a judge might be reading this one day. Even if you are confident that your intended recipient would find a joke about minorities or women really funny, chances are that a judge reading that email a couple years down the road would not find it so funny.
4. Don’t comment on pending litigation. At best, nothing you post online is going to help the situation. At worst, you may subject yourself to a defamation or retaliation claim.
5. Don’t destroy evidence. The law imposes an obligation to preserve (or at least not destroy) evidence in certain instances, such as if it is relevant to pending, threatened or probable litigation. Destroying evidence can sometimes be worse than the evidence itself. Plus, technology often makes it impossible to truly destroy evidence of electronic communications anyway. So, the point here is definitely not to go back and get rid of electronic communications that you think might pose a problem. The point is to be smart about what you are putting in writing in the first place.

Joshua Korman is an attorney from Buffalo, NY, who focuses on business law and estate planning.  Information about his law practice and other articles by him are available on his law firm’s website: www.brodykorman.com.

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