Companies should have policies regarding email and train the employees on them. Part of that process should be making clear that email lives pretty much forever. Once a message has been sent, or even drafts you never delete, you lose control over your words. That data will be stored somewhere. Storing it costs money and the content may do more harm than good if someone is doing something they shouldn’t be. On the other hand, not storing it may cause other headaches.
The mindset that you should have is that “if you wouldn’t want what you wrote in an email broadcast on the New York Times, reconsider before you hit send.” From a volume perspective, many companies’ email footers remind you to “think green” and avoid amassing piles and piles of paper by printing your email. They should be just as careful in reminding employees about the costs to the company of massive inboxes that serve no reason. Phone calls aren’t just good for increasing productivity now and then, they are cost effective.
Many companies employ law school graduates in legal and non-legal positions. Sometimes, these individuals wear “many hats” and don’t always act in a legal role. The latter is most common when in-house counsel acts as counsel and a compliance officer. It can be hard to spot business advice that is not legal in nature. It is even harder to differentiate compliance advice. For those individuals that only have a portion of their work protected by privilege, clearly delineate the roles internally.
It is also important to be clear in your emails about what role you’re acting in at any given time. If you deviate from the norm on a given occasion, be clear when you give legal advice. Trying to blend it all together sounds all well and good when you’re doing it because you think you’ll get to claim it is all privilege later. The reality is, you’re just costing your employer a lot of money down the road trying to differentiate legal advice from everything else.
Much like the issue described above, this is about confusing the legal advice from business advice. Footers that declare information to be legally privileged, or potentially subject to privilege, are wasteful and damaging when they are appended to every single email message. You are unwittingly fouling up the review process if you do get sued and, if anything, end up causing privilege to be missed and released when it could have been protected.
The law of privilege applies whether you declare this or not. And if you put it on every email, it detracts from any argument that you expected it to be privileged. Save the “Privileged and Confidential” footer for the subject lines of emails sent out by general counsel, assuming those aren’t compliance emails.
Every industry and every company has their own lingo. But do you have it recorded? If your attorneys ask about it, can you tell them? Is it worth their hourly billable rates to have you explain each term one at a time as they bring them up to speed? Wouldn’t it be nice to shortcut that expense by providing a quick list of the most common terms you use that no one will understand?
Initials are bad. Nicknames are worse. If it isn’t clear who is being referred to, documents may get treated improperly. At the very least, you’ll spend a lot more money after you provide your attorneys with a master legend of all initials and nick names used in your business correspondence. At the worst, you create the potential of waiving privilege because the person reviewing the document didn’t know that “Skip,” “Champ,” or “ABC” was actually the General Counsel of the company. This is easily avoided by using FULL names.
Treat email more like a memo than phone call. You go off topic on a phone call. An email has a subject line for a reason. Stay on topic. You can’t do all your company’s business in one email, so why try? But how does that impact e-discovery, you ask? Simple, when you get sued, the lawsuit will be on one topic, not all aspects of your business. If you put everything together, you can’t break it up later. That means all your secrets get revealed because you just had to put that one thing in there that ended up connected to a lawsuit.
Similarly, it can make a lot of sense to from a business perspective to have massive spreadsheets that show details about all of the products that your company offers. However, keep in mind, if you are involved in a litigation or investigation involving only 1 of your 200 products, your document review costs are going to be a lot higher than maintaining separate, product specific documents. You also run the risk of sharing a lot of information that is unrelated to the current litigation or investigation to the opposing party unless you opt to redact all of the non-responsive information (which can cost a lot of money.
Does the company have an email archiving system? Do the employees understand it? Does the general counsel? Has anyone discussed eDiscovery with whoever runs the archiving system? These are all good questions. The answer to all of them should be an emphatic “Yes!” If your answer is something other than “yes,” start working on it right away. While you’re at it, get a “legal hold” solution in place and establish a data deletion policy and stick with it. Integrate the two so that deletion is suspended when a legal hold situation arises. If you wait to do any of these things until you get sued, you’re eDiscovery process is going to be that much more complicated and costly.
Keep records of your eDiscovery process and make sure key people understand them. Included in that, make sure you keep a database of documents previously produced or withheld as privilege in any prior litigation. Why? The process will go smoother next time if you have these materials as a guide. Things change, people move around, but the company stays the same. Don’t let all that institutional knowledge depart with the people or the systems. You never know when you’ll need it to figure out things, whether they be substantive company matters (Who were the old attorneys? When did we change service providers?) or eDiscovery experience (How did we get the documents done? What problems did we have? How will this case differ?).
Whether it is in IT, Legal, or Procurement, someone needs to be tasked with understanding and coordinating issues around eDiscovery. Don’t wait until you get sued to have someone thinking about your company’s data. You’ve already got someone working with your company’s data, find a way to get some of that effort directed toward eDiscovery. If you wait until the last minute to assign someone to evaluate your options and start implementing these solutions, you’re going to pay a lot more and risk a lot with problems you don’t have to experience.