Think Before You Type

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Anote of caution before you click send.
Admit it. You probably didn't thinktwice before you sent your last email. But the widespread nature and ease increating these communications poses tremendous risks. Many assume emails willnever be seen by third parties. Others count on a legal right to keep thesemessages confidential. Yet all too often, these messages are not privileged orthe privilege is lost and the emails become crippling evidence in litigation.
Digging up damage
There are plenty of legally damaging- and thoroughly embarrassing - business emails that have seen thelight of day and often have been used as evidence in court. In fact, emailswere reportedly instrumental in convicting both Martha Stewart in her insiderstock trading case and numerous employees in the Enron scandal.
The recent financialcrisis produced countless damaging emails. One employee of a company chargedwith the important task of rating financial products responded to anotheremployee's concern about a poorly created financial product by stating,"It could be structured by cows and we would rate it." Anotheremployee of the same company, remarking on the dangerous financial productsbeing sold, said, "Let's hope we are all wealthy and retired by the timethis house of cards falters." At another financial services company, oneemployee - worried about the poor quality debt securities owned by his company- asked of another employee, "OK, still have this vomit?"
In one case from the1990s, female employees favorably settled a sexual harassment lawsuit againstChevron on the strength of emails circulated by male employees. Notably, one ofthe emails was titled "25 Reasons Why Beer Is Better Than Women."Chevron paid $2.2 million in the settlement. In a Massachusettsclass-action suit about the dangers of a popular diet drug, a drug companyexecutive's email was disclosed: "Do I have to look forward to spending mywaning years writing checks to fat people worried about a silly lungproblem?" This is hardly the type of email that garners jury sympathy.
In the aftermath ofthe BP oil rig crisis, plaintiffs suing everyone in sight scoured email recordsfor damaging evidence. One email, from a BP geologist to a colleague,apparently remarking on concrete work performed by Haliburton at the rig site,stated, "Thanks for the sh*tty cement job." Haliburton was successfulin convincing the judge to exclude this email from evidence introduced in courtagainst Haliburton - but not because the email was confidential as aresult of the attorneyclient privilege. So what is the attorney-clientprivilege, and how does it protect certain emails and other companycommunications?
Attorneyclient privilege In a very general sense, theattorneyclient privilege applies to confidential communications between aclient and attorney in which the client seeks or receives legal assistance. Read More…
Jack Garson is the founder of Garson Claxton LLC and leads the firm’s business and real estate practice groups. Jack serves as a legal advisor for numerous local, regional and national companies, focusing on business transactions, commercial real estate, commercial leasing, and construction law. In addition to providing legal counsel, Jack serves as a strategic advisor and negotiator for many clients, providing guidance on issues such as the growth and sale of businesses, liability and risk reduction, the hiring and retention of key personnel, and protecting and enhancing profitability, as well as negotiating the resolution of complex commerce.