Think Before You Type

A note of caution before you click send.
Admit it. You probably didn’t think twice before you sent your last email. But the widespread nature and ease in creating these communications poses tremendous risks. Many assume emails will never be seen by third parties. Others count on a legal right to keep these messages confidential. Yet all too often, these messages are not privileged or the 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 the light of day and often have been used as evidence in court. In fact, emails were reportedly instrumental in convicting both Martha Stewart in her insider stock trading case and numerous employees in the Enron scandal.
The recent financial crisis produced countless damaging emails. One employee of a company charged with the important task of rating financial products responded to another employee’s concern about a poorly created financial product by stating, “It could be structured by cows and we would rate it.” Another employee of the same company, remarking on the dangerous financial products being sold, said, “Let’s hope we are all wealthy and retired by the time this house of cards falters.” At another financial services company, one employee – worried about the poor quality debt securities owned by his company – asked of another employee, “OK, still have this vomit?”
In one case from the 1990s, female employees favorably settled a sexual harassment lawsuit against Chevron on the strength of emails circulated by male employees. Notably, one of the emails was titled “25 Reasons Why Beer Is Better Than Women.” Chevron paid $2.2 million in the settlement.
In a Massachusetts class-action suit about the dangers of a popular diet drug, a drug company executive’s email was disclosed: “Do I have to look forward to spending my waning years writing checks to fat people worried about a silly lung problem?” This is hardly the type of email that garners jury sympathy.
In the aftermath of the BP oil rig crisis, plaintiffs suing everyone in sight scoured email records for 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 successful in convincing the judge to exclude this email from evidence introduced in court against Haliburton – but not because the email was confidential as a result of the attorneyclient privilege.
So what is the attorney-client privilege, and how does it protect certain emails and other company communications?
Attorney client privilege
In a very general sense, the attorneyclient privilege applies to confidential communications between a client 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.