the dangers of email and social media a litigator’s perspective · 2016. 4. 17. · how to avoid...
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babc.com ALABAMA I DISTRICT OF COLUMBIA I FLORIDA I MISSISSIPPI I NORTH CAROLINA I TENNESSEE
The Dangers of Email and
Social Media A Litigator’s Perspective
April 5, 2016
Presented by
Michael R. Pennington
© 2016 Bradley Arant Boult Cummings LLP
Bad Email and Social Media Examples…
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Another Bad Example….
© 2016 Bradley Arant Boult Cummings LLP
The GOP, Not to Be Outdone…
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Even Trump Admits He’d Like to
Have This Retweet Back…
© 2016 Bradley Arant Boult Cummings LLP
The Good, the Bad, and the Ugly
Bill Gates email, produced in Microsoft antitrust litigation: “How
much do we need to pay you to screw Netscape?”
An oil company settled a gender discrimination lawsuit for $2.2
million after discovery revealed an interoffice e-mail giving 25
reasons why beer is better than women.
In a Massachusetts class-action suit over respiratory dangers of
the diet drug combination Phen-Fen, the court allowed this e-mail
from a company executive to be admitted at trial: “Do I have to
look forward to spending my waning years writing checks to fat
people worried about a silly lung problem?”
© 2016 Bradley Arant Boult Cummings LLP
In a life insurance case involving alleged failure to
disclose her husband was already terminally ill when
she applied for the policy, the wife posted this on
Facebook soon after her husband’s death:
“i want to get drunk!!! Who’s up for it?...... sooo ready to
just feel someone in my life and in my arms… REAL REAL
men only plz!!!”
How to Make Yourself
Unsympathetic to a Jury….
© 2016 Bradley Arant Boult Cummings LLP
Why Do We Treat Emails and Social Media
Differently (Even Though We Shouldn’t)?
Instant forms of communication invite rapid response.
This discourages deliberation in subliminal ways: “timing
is everything” incentivizes quick humor; anger always
wants out right away; and there is an almost irresistible
urge for immediacy that surrounds email and social
media.
Email and social media thus tempt the display of quick
wit; venting; and impulsive communication of a host of
other off-the cuff thoughts.
They seem private.
They seem to vanish when we hit send or delete,
providing a false sense of security
© 2016 Bradley Arant Boult Cummings LLP
The Reality of Emails and Social Media
They are effectively permanent, especially in the
workplace, and largely elsewhere.
They are almost never guaranteed to be private.
They are discoverable in litigation.
They are discoverable by regulators.
Workplace emails are generally discoverable by your
employers and your superiors.
They become public evidence whenever subsequent
litigation makes them relevant, which it often does.
They can cost you your job, your company, your
marriage, your customer, your case, and your money.
© 2016 Bradley Arant Boult Cummings LLP
How to Avoid Email and Social Media
Mistakes
Educate employees and management on the risks and
discoverability of emails and social media posts.
Be professional--write workplace email and social media
content as if they will be seen by management, judges,
juries, and by the public.
Never write emails or social media posts when you are
angry.
Never discuss legal implications of anything in an email
that is not seeking advice from an attorney.
Resist the urge to use email for humor, particularly
“politically incorrect” humor & humor about the company
or its customers, vendors, partners or competitors.
© 2016 Bradley Arant Boult Cummings LLP
Avoiding Email and Social Media
Mistakes
Think twice before you hit send.
Don’t fill in the “TO” lines until just before
you hit send.
Stick to what you know—don’t speculate
about facts or “think out loud.”
Be especially cautious with exaggeration.
NEVER send an email telling others to
delete or destroy emails or other
documents.
© 2016 Bradley Arant Boult Cummings LLP
Remember This Handy Alternative:
© 2016 Bradley Arant Boult Cummings LLP
And This Alternative