SHOULD YOU REALLY HIT ‘SEND’ ON THAT EMAIL?
By Procopio Partner Jeffrey S. Hood
You’re doing three things at once, fueled with a bit too much caffeine. You learn that one of your business partners has just made another ridiculous request. You then fire off an email to a colleague, referring to your partner as someone who performs immoral acts, and describe how you are ill-inclined to share with him known flaws in your company’s product. You may not have meant any of it—sometimes we sound off when we’re frustrated—but how would that email read when put before a judge or a jury in a product liability case?
You cannot always anticipate when a potential conflict will grow into litigation, but you can safely assume that any email correspondence that touches on any aspect of that litigation could be discoverable. That means opposing counsel can obtain those emails and use them against you and your company in a lawsuit. Email communication—whether sent from your work or personal account—should not be considered a private chat room. Instead:
• It is a fertile source of damaging and/or useful evidence for your opponent.
• It can be considered an admission of liability by the sender and her/his company.
• It can establish a legal argument of bias or prejudice against the sender.
• It can be damaging to professional and personal relationships; and
• It can be downright embarrassing.
There are many ways in which a damaging email can take shape, as shown by these examples taken from actual emails discovered and used in construction litigation. Take the example of a senior manager who berated his employees in an email, writing “For goodness sake can you all please CONCENTRATE!! We’re managing products worth millions of dollars. Not a kindergarten playground.” An accusation such as that can endorse an opposing legal counsel’s argument that the company’s work was unprofessional, increasing risk of a liability finding.
Sometimes the damaging information comes after a conflict has arisen. Take an internal email written by a general contractor discussing its approach to preparing a claim against a project owner. The author wrote out a series of “possible ‘spin’ talking points” that the contractor could use to justify a cost overrun, concluding the list by writing “Enough spinning for today.” Even if the points listed were all valid, the way they were presented in the email undermines the contractor’s case in court.
Sometimes the most damaging emails derive from good intentions. In one example, a contractor describes a home that he felt was “un-fit to show” potential buyers. “We are trying to sell quality and we are lying… [we] are in an extremely liable position.” The email author goes on to say that “I believe they are just waiting for the lawsuit.” This is one person’s opinion, and may in fact not accurately represent the overall work being done or the idea that the company intentionally will be delivering poor quality to a customer. But it pretty much wraps up a case for opposing counsel that a jury should find the contractor liable in any future suit.
It also won’t help you in court if you acknowledge problems by trying to pass the blame to someone else. Take an email from a structural engineer to a colleague: “You… have been well aware of this collector design defect and related issues… for months. I am sure it is very embarrassing for you… as the mistake was caused by staff working directly under your supervision, but blame serves no purpose here.” What also serves no purpose is having the curtain drawn back on internal disagreements over potential liability issues before a jury.
Sometimes profanity involves disparaging the business partner or client. Take this construction manager emailing about contract negotiations with a potential client: “[Name redacted] has come up with some changes at the last minute and I told them no f**king way. TAKE IT OR LEAVE IT!... He was pissed and I told him I agree but this is the deal… He is such a little a****** but he loves me, respects me and knows I work my tail off.” Note that capital letters were in fact used in this actual email, but the asterisks were not. Beyond the embarrassment in the courtroom, would you want future business partners and clients to see this language used by you?
Finally, consider an internal email from a structural engineer to his colleague discussing design problems attributed to their firm. Clearly not appreciating or expecting his email would years later become an exhibit at trial, he states, “I am still of the opinion that if we are pushed to defend our design it will have a lot of holes big enough to fall through.” Rest assured that an experienced litigator will use this email against you, and your defense of the issues will fall through those big holes you referenced.
It isn’t difficult to avoid falling into a liability trap due to your use of email. Before you hit “send,” ask yourself if your email contains:
• Disparaging comments about coworkers, clients or customers;
• Improper grammar or punctuation;
• Or anything that could be construed as an admission of liable behavior.
You should treat each email as a stand-alone document that presents you as a serious and responsible professional. And you should also recognize you have another form of communication available to you: talking on the telephone.
Jeffrey S. Hood is a Partner at Procopio and a member of its Construction and Litigation practice teams. His practice includes the prosecution and defense of claims arising out of public and private construction projects.