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

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Page 1: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

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

Page 2: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 2016 Bradley Arant Boult Cummings LLP

Bad Email and Social Media Examples…

Page 3: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 2016 Bradley Arant Boult Cummings LLP

Another Bad Example….

Page 4: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 2016 Bradley Arant Boult Cummings LLP

The GOP, Not to Be Outdone…

Page 5: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 2016 Bradley Arant Boult Cummings LLP

Even Trump Admits He’d Like to

Have This Retweet Back…

Page 6: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 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?”

Page 7: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 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….

Page 8: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 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

Page 9: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 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.

Page 10: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 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.

Page 11: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 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.

Page 12: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 2016 Bradley Arant Boult Cummings LLP

Remember This Handy Alternative:

Page 13: The Dangers of Email and Social Media A Litigator’s Perspective · 2016. 4. 17. · How to Avoid Email and Social Media Mistakes Educate employees and management on the risks and

© 2016 Bradley Arant Boult Cummings LLP

And This Alternative