Electronic Discovery Institute Class 32: Write Right

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on October 7, 2018. Go to https://www.lawinstitute.org/ to sign up for it. The course entitled, Write Right, is taught by Chris Liwski, senior corporate counsel for Sanofi US, and Patrick Oot, former senior special counsel for the SEC.

Overview & Goals

More than 100 billion business emails are sent each day, and the total is only expected to increase in the future. Email may reside on a company's server for years after it is sent. It's important to 'write right'. One must recognize and avoid the risks of emails.

Before email, attorneys used to take considerable time preparing memoranda. After the introduction of emails messages, communications were sent to opposing counsel and clients without as much care and sometimes without sufficient context.

There are many high profile cases in which emails have been smoking gun evidence. Emails may reveal a particular party's mental state with respect to a claim. In the Enron / Arthur Andersen litigation emails between executives and accountants showed that they destroyed evidence which would incriminate them. Opposing counsel may try to transform mundane email messages into smoking gun evidence by showing them to a jury in a false light.

Plaintiffs in a class action suit against Fedex alleged that it overcharged business customers for residential deliveries. The plaintiffs were able to use emails that showed their one of sales executives was aware of the problem and chose not to correct it because it was worth so much money to Fedex. The suit was settled for $21 million.

An email message is considered by the courts to be a business record. There is no such thing as a private email, which discusses business affairs. Emails have to be saved as soon as a company receives notice of litigation. Emails which showed that Merck scientists knew of the risks of Vioxx, led them to agree to a settlement with plaintiffs for $5 billion dollars.

People too often compose emails to communicate their thoughts as they would communicate them orally. In April 2007, Bear Stearns hedge fund managers exchanged emails stating that they thought the subprime market was toast. They were later arrested for fraud. Private email, where people feel freer to express their thoughts, can end up in document productions.

The destruction of email messages can lead to sanctions. It may be wise to send email as a last resort, and instead try to communicate first face-to-face or over the phone.

Important Tips

1. Say it Don't Send It - consider alternate communication methods.

2. Reconsider Reply All - think about the audience you're sending a message to.

3. Brevity is a Virtue

4. Be Cautious with Humor - it may get lost in translation.

5. Different Cultures Speak and Write Differently.

6. Keep the Style Readable and Avoid Emotion

7. Keep it Clean - Don't swear

Company email is company property and should only be used for the purposes of furthering the business.