INNOVATION

email correspondence done in the regular course of business will be
discoverable in litigation and thus, possibly made public and/or used
in support of a claim made against a business. Of course, documentation
and email communications are imperative in the modern business
context. Indeed, good documentation of employment and business
decisions can be helpful in defending a business in litigation. However,
that same documentation and email communication can also be
devastating in a lawsuit where caution is not exercised in what and
how one is communicating. With that in mind, here are some tips to
minimize the potential impact:
1. Take a moment to reflect. Just because email is a quick and
efficient method of communication does not mean that less
thought should be put into what is being communicated.
2. Consider your recipients and minimize. Consider the
context and only send email to your target audience.
3. Label legitimate communications as “Privileged &
Confidential – Attorney Client Communication.” Not all
communications to your lawyer are privileged, but such a label
on potentially privileged documents may help highlight your
intention and draw the attention of the reviewing attorney.
4. Avoid exaggeration and inflammatory rhetoric. Superlatives
and dramatic language may be useful in getting your point
across, but may also take on a life of their own in litigation.
5. Watch forwards and attachments. These are discoverable
too.
6. Consider public perception. If possible, don’t write anything
you wouldn’t want shown to a jury on an eight-foot screen.
Of course, when in doubt, the safest method is to simply pick up the
phone.
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