Things You Should Never Put in an E-mail

Evidence

Posted Dec 3, 2008, 12:37 pm CST
By Molly McDonough

Over at the Wichita Eagle blog What the Judge Ate for Breakfast, there's a caution about e-mail during office hours on office computers.

Courts reporter Ron Sylvester quips, "My wife says you should never put anything in a company e-mail that you don’t want to be shown to 12 strangers on a big movie screen."

His wife's an employment lawyer, so she should know. The post notes that lawyers are increasingly searching company e-mail and files during e-discovery.

So what are they looking for?

Roger Matus, over at the blog Death by E-mail, reproduces a top 10 list.

Here are a few that will likely raise red flags for e-discovery sleuths:

• "Delete this email immediately."

• "I really shouldn't put this in writing."

• "We're going to do this differently than normal."

• "I don't want to discuss this in e-mail. Please give me a call."

• "Don't ask. You don't want to know."

Matus then advises, "If you find yourself typing one of these phrases, perhaps you should delete the entire e-mail."

Comments

Report Abuse

Posted by Barrister2010 - 1 month, 1 day, 16 hours, 39 minutes ago

Thanks for telling us how to evade the law.
Posted by Deb - 1 month, 1 day, 16 hours, 2 minutes ago

Um, what laws would be evaded? It’s just saying how to keep private matters private.
Posted by Robert Switzer - 1 month, 1 day, 15 hours, 7 minutes ago

One should be mindful that delete does not always delete. Its lurking in cyberspace or ib the deep recesses of a chip.
Posted by Jim - 1 month, 1 day, 15 hours, 4 minutes ago

Matus is saying delete it before you send it. I’d add that if you typed it and saved it as a draft, you might be screwed as well - civilly not criminally. I think it’s still legal to think bad thoughts in this country.
Posted by JackSpratt - 1 month, 1 day, 15 hours, 4 minutes ago

That would be the law that states that we’re all obliged to transcribe all of our thoughts so that they can be part of the discovery process.

Barrister in 2010 you say? I’ll do my best to avoid anyone called to the bar in that year…
Posted by Bill - 1 month, 1 day, 14 hours, 39 minutes ago

“I think it’s still legal to think bad thoughts in this country.”

For now, but probably not for too much longer…
Posted by Deny, Deny, Deny - 1 month, 1 day, 14 hours, 26 minutes ago

The illegal part is the implication that the improper or incriminating discussions and decisions are still going to take place, but the writer and her company will later seek to evade liability by perjuring herself, and will have left the opponent without the documentary evidence to impeach her.
Posted by Donald - 1 month, 1 day, 14 hours, 12 minutes ago

As a business owner, there would be many logical, ethical, logical, and appropriate reasons that I would not want to discuss in what would possibly become a public forum. To automatically assume skulldugery is an insult and indicative of immature logic.
Posted by Jackcatscal - 1 month, 1 day, 13 hours, 27 minutes ago

How about this one:

‘‘it might be useful’’ to remind Andersen employees working on the Enron account of Andersen’s policy of destroying unnecessary documents…

Email from Anderson lawyer Nancy Temple after the US Government opened its investigation of Anderson client Enron.
Posted by Marc Bourget - 1 month, 1 day, 11 hours, 56 minutes ago

Deny, Deny, Deny’s comments appears to presume that the discussion of an illegal activity proceeded to illegal conduct.

I consider this expression a significant departure from objective thinking and below the standard of care for a legal professional.

Mind you, I’m not accusing DDD of such, just expressing my opinion of or impression derived from the point. Many times we respond “on the fly” without much reflection. The value of this blog to the readers will be improved if critical thinking skills are applied.

Marc Bourget,
Stockton, California
Posted by 1984 - 1 month, 1 day, 11 hours, 29 minutes ago

Jim, Bill - While it is still legal to “think bad thoughts,” what someone is thinking while commiting a crime could determine whether a hate crime enhancement applies.
Posted by DDD - 1 month, 1 day, 11 hours, 23 minutes ago

Our discovery rules like such discussions to be discoverable. If the discussion did not lead to any illegal conduct, that will surely come out. Our system is premised on the discussion being open for discovery. Nothing presumes illegal conduct, but surely discussing illegal conduct, and illegal motivations, would be relevant to probing what actually happened, and what the actual motivations were. All of which may bear on the liability.

Again, the only illegal implication here is that an employment lawyer recommends not putting things in writing. This article is not about having proper, non-damaging discussions, it is about avoiding documentary evidence of improper discussions. The article is premised on the things being damaging. I don’t think the employment lawyer is worried about e-mails that say “I shouldn’t write this, but let’s be fair, follow all our manuals and the law, and make sure we are not discriminating at all.” The whole article is about damaging statements. Whether they led to illegal conduct remains to be determined, but our system likes to know what discussions took place, whether orally or in writing.

Discovery is not about finding only evidence that ends up being definitive; it’s the time to find all evidence, good and bad, that might bear on the truth.

Let’s try to avoid accusations of malpractice here. Just trying to discuss.
Posted by WebEd - 1 month, 1 day, 9 hours, 56 minutes ago

Here’s an even sterner admonition. Never put anyting in an e-mail you wouldn’t want your mother to see.
Posted by 'Stina - 1 month, 1 day, 8 hours, 31 minutes ago

Most e-mails that should not be sent do not involve any criminal activity, yet they still should not be sent by a prudent employee.
Posted by Lawyerly - 1 month, 1 day, 57 minutes ago

I hate e-mail, and this is one of the reasons. Avoid it like the plague.
Posted by E-Law - 1 month, 20 hours, 44 minutes ago

I can’t imagine practicing law in 2008 without the extensive use of e-mail. I have also found it to be very useful when a client inquires about a bill to be able to show him a stack of printed-out e-mails between my firm and that of opposing counsel, witnesses, experts, etc. I must admit, however, that to my surprise I sometimes find others to be stunned when I read their e-mailed promises back to them—as if the fact that the promise was made in an e-mail automatically makes the promise revocable at the sender’s option.
Posted by B. McLeod - 4 weeks, 1 day, 13 hours, 51 minutes ago

Although, if you have one of those pointy-haired partners who have staff write their E-mails for them, it can be kind of fun to slip in something stridently accusing a candidate for a national elective office of harboring secret plans for ethnic genocide. To support the appearance of authenticity, you can slip in a “fuh. . .fuh. . .fuh. . .” or two, somewhere in the text.
Posted by Perry L. Segal - 3 weeks, 4 days, 22 hours, 51 minutes ago

I take issue with the attitude that giving someone essentially what amounts to an e-mail ‘Dos & Don’ts’ list is somehow equivalent to assisting in the commission of dishonest or illegal acts. That’s quite a leap. There are many legitimate, legal and appropriate reasons to include details in e-mails and conversely, to leave them out. For example, if you were seeking advice from your attorney, privilege would attach. In that context, asking “Is this legal” wouldn’t be unusual.

This is why companies have e-mail policies in the first place. It’s not about evasion, it’s about prudence.

Commenting has expired on this post.

ABA Journal - Law News Now

Evidence