Corporate communications occur primarily electronically. It is important for companies to ensure these communications stay where they belong — within the company, not broadcast in a courtroom where a judge or jury can inject their own thoughts about what the author meant when making the statement. Through implementation of internal communication policies and company-wide trainings, companies can assist employees with understanding the why and how of keeping corporate communications where they belong. In relaying the message, it is helpful to consider the mediums used for corporate communications, as well as areas where they are particularly susceptible to use in litigation.
Categories of Susceptible Communications
Not too long ago email was the primary method for employees to communicate with each other. That has changed with rapid advancements in technology and business needs. Employees now use, in addition to email, text messages, social media, intranets, extranets, and many other available means of electronic communication. And let us not forget the use of emojis. These communications occur via both company-issued devices and employee-owned devices. It is increasingly the case that communications generated from these devices and in these various methods are sought and used in litigation. From a comment on LinkedIn to text messages between employees, or communications between an employee and a customer on an extranet, this data may be discoverable in litigation. What one employee may consider an otherwise innocuous statement may be seen by a juror as proof of a wrongful act.
Areas of Susceptibility
Companies typically consider certain departments to be less of a litigation risk than others. However, given the informal nature of most electronic communications, combined with the basic nature of business, employees across the board can say things that may have a potentially negative impact down the road. A supervisor from your accounts payable department may make a practice of sending harassing sexually-explicit texts to a subordinate. Someone from mergers and acquisitions may reveal in a text that they had inside information relating to a deal, winking face emoji included. Or perhaps someone from your product development department communicates via extranet with a supplier, requesting and obtaining confidential competitor-company information later used in a product roadmap. Any one of these situations could lead to litigation relating to employment claims, tortious interference with a prospective business advantage or patent infringement.
Given the many avenues available for corporate communications to make their way out of the company, and the various legal actions that may be brought in reliance on those communications, companies should raise the issue with employees early and often. Some considerations to bear in mind are: (1) whether the information can be relayed via phone versus email, (2) the language used, (3) the tone of the communication, (4) the amount of information communicated and (5) the potential for the statement to be misinterpreted. These recommendations, while seemingly basic, represent a critical and necessary component of a company’s efforts to minimize risk in corporate communications. These recommendations are not meant to shield wrongdoing; but rather to help prevent otherwise innocent and lawful conduct from having a negative impact on a company.
Neda Shakoori is an attorney with McManis Faulkner. Her practice focuses on civil litigation with an emphasis on commercial and business law matters. She is currently leading the firm’s eDiscovery Initiative and oversees all eDiscovery in the firm’s cases. She also presents MCLE programs relating to eDiscovery. For more information, please visit mcmanislaw.com.