Don’t Put It In Writing

Steven Cesare, Ph.D.

A business owner from the state of Washington called me the other day with an update on a retaliation lawsuit a former employee filed against him personally and his company professionally. First things first, “Yes” he has Directors and Officers insurance. Next, “Yes” he also has a personal umbrella policy. And finally, “Yes” his company has $2 million in EPLI coverage. Nice to know he took my advice from several years ago. Trust me, in today’s litigious work environment, you never know when you are going to need it.

But you will need it. Just ask him.

During our lengthy discussion, he informed me the plaintiff lawyer, as part of the Discovery phase of the trial, requested, and the judge granted approval, that the business owner submit every e-mail, saved voice-mail, text message, and written form of documentation for the past five years, for legal review.

Every.

For five years.

He confided that some of those e-mails were not flattering, puritanical, or professional. Those points were relentlessly highlighted during his videotaped eight-hour deposition that obviously tried to portray him in a less than favorable moral and legal light. During that deposition, the plaintiff lawyer commented on various e-mail jokes, memes, and screen captures that were more than mildly politically incorrect. Funny at the time; not so much during a deposition.

Moreover, the plaintiff lawyer incessantly interrogated the business owner to explain the precise meaning contained with certain words, sentences, and ideas from innumerable e-mail messages over that five-year time span, trying to portray the business owner as a racist, sexist, hater, retaliator, discriminator, elitist, etc.

You think those e-mails, text messages, and documentation, are simply e-mails, text messages, and documentation? They are not. They are what’s called “evidence” for the prosecution.

Oh, by the way, during our lengthy conversation, he told me his company lost the retaliation lawsuit.

The award to the former employee was $5,000,000.

Due to that humbling process and damaging legal outcome, I consistently remind all my clients to be very careful, narrow, and vigilant when receiving, forwarding, or drafting correspondence. In particular:

When receiving a humorous, albeit politically incorrect e-mail, video, etc., enjoy it, and then delete it. Do not forward it to other employees or your personal e-mail account, nor store it on your computer.
When discussing employee performance, discipline, or potential dismissal, NEVER put any editorial commentary or informal content (“We all know the way he is,” “Here we go again,” “He just doesn’t get it,” “That’s typical for him,” “Take care of it.”) into an e-mail, text message, voice-mail, or document. Everything you or your co-workers write down, can and will be used against you.
When discussing employee performance, discipline, or potential dismissal with any co-worker, only do so verbally, preferably in person, not as a voice-mail. The context of those discussions will be interpreted in the current timeframe, rather than trying to recall that same context five years later.
When someone sends an e-mail to me seeking advice regarding a performance management issue, I simply respond back with “Call me.” Lest otherwise, I get incriminated as part of a conspiracy.

These admonishments strongly advocate for professional caution, and do not imply covering up any suspicion, illegality, or ignominious motive. NEVER break the law! Formal documentation is acceptable; misattributing informal comments as probative evidence is the plaintiff lawyer’s playground.

If you don’t believe me, ask your corporate attorney.

I know a guy with 5,000,000 regrets.

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