It is inescapable: All companies, no matter the industry, face litigation risks through the day-to-day creation of documents.
"Bad" documents increase your exposure to risks and can threaten your business. But there are ways an organization can coach its employees to avoid those documents and instead create "smart" documents that help advance case themes and mitigate risk should litigation arise.
In this article, we will show you how to do just that — using open-source stories and anonymized examples from our own practice as product liability defense attorneys.
What Is a Document?
A document can be an internal or external communication that takes any one of a variety of forms, such as:
• Hard copies
• Electronic data
• Handwritten notes
• Emails (including archives)
• Text messages
• Social media
• Internal messaging
It is critical that your employees understand that all their documents and communications may potentially fall within the scope of discovery in future litigation (yes, even their texts!).
What Is a "Smart" Document?
The best way to avoid creating “bad” documents is to train your employees on how to write “smart” documents. Smart documents are those that are:
• Necessary. A smart document shares important information that needs to be communicated.
• Understandable. A smart document does not omit important context. It uses plain language.
• Concise. A smart document is succinct: it does not include extraneous information that may confuse later readers or be used to imply something untrue.
• Accurate. Smart documents do not include false information or unfair characterizations.
• Appropriate. Smart documents do not include inappropriate language or opinions. Inflammatory/colorful language is dangerous.
• Delivered properly. Smart documents are sent only to the necessary people.
1) Never Assume Confidentiality
Every time your employees create a document, they should assume other people — beyond the intended recipients — will see it. People forward emails all too often, even when their company prohibits it, and today's technology makes that easy.
Further, placing blanket confidentiality disclaimers at the bottom of your email, such as, "This communication is confidential and intended for the recipients only… is not be to be forwarded or otherwise disclosed," does not protect you.
In nearly all circumstances those disclaimers below a signature block are not legally binding, since, as with any other contract, both parties have to agree to the terms.
2) Never Assume Documents Stored on Personal Accounts and Equipment Are Not Discoverable
In this post-pandemic world, the lines between work and personal life are more blurred than ever.
Employees may use personal email accounts for work purposes. They may use personal cell phones for sending work-related texts and voicemails. They may store work documents on personal computers or on cloud accounts.
All of these are fair game when it comes to discovery. The best approach is to encourage employees to conduct themselves in a manner where they, and the company, would not be embarrassed by what they say, no matter the context.
3) Be Careful of Humor and Sarcasm
Humor and sarcasm rarely read well or advance your company’s objectives. You risk offending co-workers, regulators, juries, judges, opposing parties, and the public.
This is particularly true for off-color jokes or any joke relying on innuendo. Remember: Even appropriate jokes can be misinterpreted.
Sarcasm is also difficult to interpret in writing without the benefit of tone of voice and body language. In fact, multiple studies have shown that people are often incapable of gauging the emotional tone of sarcastic emails. What may have been meant as a lighthearted comment may come off as something entirely different.
4) Do Not Write and Send Anything in Anger or Haste, or Use Inappropriate Language
Before you circulate a communication, make sure you are in the right state of mind.
We say things in anger that we often regret. Even taking a few seconds to walk away and breathe can make a big difference. Avoid all racial, ethnic, religious, political, or gender slurs (which are likely against company policies). And refrain from using profanity.
5) Do Not Sign Your Name Without Knowing What You Are Signing
When your name is attached to a document, including an email with your signature block, you have endorsed that document. Make sure that you never endorse a document without reading it, ensuring you stand behind it, and attesting that it is not false, misleading, or unreliable.
You are responsible for agreements you enter into even if you did not read every provision thoroughly. Even with non-contract documents that bear your signature, you may have a hard time convincing a fact-finder that you do not stand behind it. “I didn’t read it” does not play well with judges or juries.
6) Avoid “Red Flag” Words and Phrases
Not all words are created equal. Some words and phrases set off alarms in litigation. We recommend avoiding the following in any written or recorded communications:
• “poor design”
• “what we did was wrong”
• “we screwed up”
• “it costs too much to fix”
• “a malfunction”
In one product liability case we handled, a customer called the company’s customer service line to report problems with a medical device after experiencing a medical event. The customer service representative made admissions, including the statement, "The device malfunctioned on you."
The call was recorded and summarized in writing, in keeping with company policies. Not surprisingly, this proved damaging to the defendant's case.
Take some time to brainstorm with other members of your in-house team to determine what the list of “red flag” words or phrases may be for your industry, service, or product. Once you determine this list, include it in your trainings with employees.
Finally, make it clear to customer service employees that they should never engage in legal discussions or make any admissions about the product or service.
7) Do Not Document Your Instinct to Avoid Documenting Certain Topics
If you believe it may be unwise to put something in writing, don't document that instinct.
One example: In a non-compete lawsuit brought by an employer against his former employee, the worker's new boss emailed him about his performance goals. The new boss stated in writing, "If we are not comfortable including that in your goals for obvious reasons, let’s make sure your team downstream does.”
If it is "obvious" you should not be doing something, it is unwise to put it in writing.
8) Create Good Documents by Appropriately Documenting In-person, Video, and Telephonic Meetings
While there are certainly risks that come with putting things in writing, there are also risks that come with not doing so.
In one recent case involving supply chain issues, it became apparent that the supplier had done a much better job of creating a “paper trail” than our client as the dispute was unfolding. The supplier had a practice of sending emails summarizing key telephone and virtual meetings that framed the dispute in the most favorable light to them. Our client rarely responded.
Years later, during the litigation, many key employees at our client’s company had left, and the remaining employees had very few documents and details to rely on, as their memories had long since faded.
The lesson: Regularly document meetings, even just internally, to preserve your ability to tell your story in any future litigation.
9) Only Share What Your Recipients Need to Know
Teach your employees to view all work-related communications as purposeful. Any extraneous information creates risk. If there is truly a need to share extraneous information, rely on the safest form of communication: verbal.
10) Stick to the Facts
The purpose of workplace documents is to communicate factual information, not speculate or carry on long-winded conversations. The company with documents that are well-written, factually accurate, and limited in distribution may very well avoid attempts by opposing counsel to twist the author’s well-meaning words.
When you venture beyond your knowledge, make it clear that you are sharing an opinion.
Avoid speaking in generalizations. And make it clear to employees who are not part of the legal team that rendering legal conclusions like "this is negligence"—even in notes—can create a smoking gun for the other side.
The Lesson of Big Tobacco
It is difficult to consider bad documents without thinking about Big Tobacco. The giant consumer lawsuits of the 1990s are well known, but few may realize that cigarette manufacturers faced nearly 800 suits from the 1950s onward that similarly alleged that their products caused harm. The tobacco industry was largely victorious in fighting these claims because they managed to avoid disclosure of key documents.
Everything changed in the 1980s, when one plaintiff's attorney obtained a small but damning trove of internal documents that completely changed the litigation landscape. The documents were used to show that tobacco companies knew of the addictive nature of nicotine despite their contrary public statements and revealed companies' efforts to market cigarettes to children.
The end result: By the end of the 1990s almost every attorney general across the country brought actions against Big Tobacco alleging consumer protection and deceptive trade practices claims, and settlements totaled hundreds of billions of dollars. The history of Big Tobacco is a testament to the impact that bad documents can have on a company's exposure in a case.
Following the rules for effective documentation will enhance, not impede, corporate communications—and will help shield your firm from legal risk.