Magazine article Business Credit

"Dance like No One Is Watching; Email like It May One Day Be Read Aloud in a Deposition"

Magazine article Business Credit

"Dance like No One Is Watching; Email like It May One Day Be Read Aloud in a Deposition"

Article excerpt

"Dance like no one is watching; email like it may one day be read aloud in a deposition." (1) You may have recently seen a meme with this advice on social media sites. It strikes us as funny because it strikes so close to the truth. Email is seductive. It lures us in because it is convenient, immediate, comfortable and informal. Email, however, can lead us into some very uncomfortable and even embarrassing situations and unintended legal consequences. Ignore most advice found on the internet, but consider making an exception for "emailing like it may one day be read aloud in a deposition." In the litigious business environment that credit managers in particular work, emails and texts can become the main attraction in a deposition. So, take heed and read on for email tips to help you and your company mitigate risk and avoid aggravating legal situations.

Email is a Written Record That May Be Subject to Discovery

Everything you write in email is a written record that may be used against you and your company--particularly in litigation, including with customers, vendors and other parties. For example, emails with a customer regarding payment on their account or a complaint about a product or service your company provided will likely be part of the written record documenting the relationship between your company and your customer. Internal emails between employees at your company, as well as external emails with third parties, will also likely be part of this written record. If litigation ensues, a customer or vendor or other opposing party can request production of your emails and the emails of others at your company in discovery. Emails may be unearthed months or years later in cloud storage, on servers or on backup tapes--even if you think those emails were long ago deleted from your inbox or sent folder. Emails should not be assumed to be private and may be subject to varying degrees of exposure. Remember, there may be no true delete in the digital age. Text messages may also be subject to discovery and disclosure even if you are using a personal device and data service provider.

Emails May Be Subject to a Litigation Hold and Reviewed

If a dispute develops and litigation is on the horizon with a customer, your company has a duty to preserve documents and information concerning the customer and the matter in dispute. This duty to preserve documents and information with a litigation hold extends to emails and other electronic data, including text messages, in addition to hard copies of documents. Thus, your emails and text messages may be subject to a litigation hold in the future and may be collected and reviewed by management and your company's attorneys for starters. If your emails and text messages are responsive to document requests served in litigation, they may be produced and then reviewed by opposing counsel, who will be looking for anything and everything that can be used--and potentially twisted--against your company and to the advantage of his or her client in litigation. Your emails or texts could wind up attached to publicly filed motions or as exhibits presented at a deposition or at trial before a judge or jury.

Pause, Review and Think before You Hit Send

Given where your emails may possibly end up, it is a good practice to pause, review and think before you send an email. Prepare a draft, wait a few minutes, rereview, and then ask yourself the following questions before you hit send;

* Is this email necessary? …

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