Mitigating the Risk of Written Communications

By on August 13, 2014

By Sandra C. McCallion and Melanie A. Grossman, Cohen & Gresser LLP

With the prevalence of electronic communications – email, texting, social media postings – reviewing attorneys are often buried in material, but powerful algorithms that can electronically sort through those communications make opposing counsel more likely than ever to find the smoking gun that can destroy a case.

The response of corporate America has been largely ineffectual. The primary “fix,” disseminating written electronic communication protocols and teaching “netiquette,” has not worked.

The first step in any communication risk management program is to educate employees. They need to understand that whatever they write may come to light. Explain the basics of the discovery process and what it means if a document hold notice is issued.

Likewise with contractors. It is critical that they understand that their documents will likely be discoverable. Even if the documents produced do not subject the vendor to liability, those documents can cause harm to the business relationship. Employees and consultants must know what they should and shouldn’t write – and why.

The more tailored the program to the particular subject matter for which each individual employee group is responsible, the better. Thus, provide marketing examples for consumer relations, engineering examples for the engineers, etc.

Minimally, employees need to be made aware of the implications of disclosing company information even on personal, non-work related social media. It isn’t enough to put this in a handbook. Employees must be educated in a way that drives the point home.

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