What not to say over corporate email: 5 ways to stay safe

email | BCBusiness

Why sometimes it’s better to pick up the phone

Email has made it possible for almost anyone to send out a widely read message—but with power comes risk. In some cases, an email can have devastating consequences for a business when civil litigation or a government investigation arises.
In the late ‘90s, Microsoft was nearly broken up amidst antitrust concerns in part due to emails between Microsoft managers that were disclosed to the U.S. Department of Justice. More recently, in what has been called the “trillion-dollar class action,” certain international banks have been the subject of civil lawsuits and government investigations based, in part, on emails between bank employees suggesting they were manipulating benchmark interest rates.
While each business faces unique issues in managing the risks inherent in email communication—and there is no substitute for effectively training employees in email etiquette and good records management—here are some things every employee should consider before sending an email, or any other type of electronic message for that matter.
Should you write this message?
It’s tempting to respond to an email with an email, an IM with an IM. But before automatically replying in the same form, consider whether you should respond in writing at all, at least in the first instance. It might be both easier and better for risk-management if you instead pick up the phone and call the other person to discuss the issue. Nothing precludes you from following up with an email confirming the substance of the communication—but a simple phone call can prevent misunderstandings and may prevent the creation of harmful written evidence. Before writing the message, consider the medium.
Would you want the world to see this message?
If you have decided that an email is the best mode of communication, draft the message as if it may be seen by the world. An email between two colleagues can be shared around the world in an incredibly short period of time. In most cases, the author of the email will have no idea how widely the email is shared. For these reasons, it is often prudent to draft electronic business communication with care and under the assumption the message will be disseminated.
Can your email expose you to a defamation claim?
Email makes it a lot easier to defame someone. It has never been easier for so many people to cause so much damage to reputations. Teach employees that if you dislike someone, say a colleague, there is probably a better way to communicate with the appropriate person than to send an email describing your views. And if you receive such an email and you forward it on to others, you may expose yourself to liability for defamation because publishing someone else’s defamation may itself constitute defamation. Business email is not a forum for venting negative feelings. Don’t do it.
Are you admitting to wrongdoing?
When civil lawsuits are initiated against a business or when an investigation is launched, lawyers will usually ask for all the relevant documents. That will usually include the emails and other electronic messages of relevant individuals. If those emails contain statements that amount to admissions of wrongdoing, they may become evidentiary “smoking guns” against the business.
In some cases, employees making such statements have done so without considering the legal ramifications of the statement, and thus the statement may not even be accurate. Trying to explain or deal with such evidence in the context of litigation or a government investigation is rarely easy. Instead, train employees how to handle sensitive legal issues, describe the types of statements and evidence that would be problematic, and provide them with a way to address these issues outside of email.
Are you waiving privilege?
A business’s communication with its lawyers is generally privileged and need not be disclosed to anyone. But that privilege may be waived by the business and disclosure may be compelled if that communication is shared with third parties. For example, if an employee decides to forward an email from the company’s lawyer to a friend not affiliated with the company, the contents of that email may no longer be privileged and the waiver may extend to other related subjects. In other words, train employees to keep business communication, especially legal advice, confidential to avoid costly and embarrassing situations in the midst of civil litigation or a government investigation.


Hakemi & Ridgedale LLP is a Vancouver law firm that advises clients in commercial disputes and regulatory proceedings, particularly in the areas of securities litigation; competition law; shareholder and partnership disputes; and defamation law. Find out more at www.hakemiridgedale.com.