Cautionary Tales and Two Low-Cost Ways to Avoid Playing the Bad Guy in Court

Last year, Uber agreed to pay over $200 Million in equity to settle a trade secrets case brought by Waymo, Google’s self-driving vehicle project. Waymo claimed that its “tech lead,” Anthony Levandowski, downloaded 14,000 files before he—and the files—eventually landed at Uber, which allegedly wanted the info for its own self-driving project. Many have suggested that the stolen information did not really amount to trade secrets and that Waymo had a weak case.

Despite a weak case, Waymo gained traction by revealing the thoughts of Uber’s executives as expressed in their own internal emails. For example, Uber’s CEO emailed a colleague that “It is war time.” Another Uber executive suggested by email to target Waymo employees because the “IP [is] in their heads.” At trial, Waymo’s attorneys displayed an internal memo from Uber’s CEO, which stated that “we want …. [a] pound of flesh.” Whether or not Uber actually did anything unlawful, they looked (and emailed) like “bad guys.”

Attorney David Boies, famous for representing clients such as Al Gore and Harvey Weinstein, is noted for approaching trials as “morality plays.” In other words, cases are really about presenting the parties as “good guys” versus “bad guys,” credible versus untrustworthy. In 2001, Boies represented the U.S. Department of Justice in its anti-trust case against Microsoft. The government claimed that Microsoft intentionally maneuvered to force Netscape Navigator out of the market. Bill Gates testified that Microsoft would never do such a thing. However, Gates—who of all people should have known how emails work—was confronted with his own words to the contrary.

Boies exhibited an email from Gates to Microsoft colleagues urging pressure on Netscape and concluding that “I would really like to see this happen!!” Microsoft also had its sights set on Apple. A Microsoft exec emailed Gates, stating, “The threat to cancel Mac Office 97 is certainly the strongest bargaining point we have as doing so will do a great deal of harm to Apple immediately.” Most of the government’s evidence on the first day of the trial consisted of Microsoft’s emails.

At times, it seems that the apparent anonymity of the screen and keyboard is irresistible. I recently met with a client’s employee to prepare for trial. When he started reviewing a key email he sent to a coworker, his face flushed. He looked across the table at his boss and said, “Did I really write that? I can’t believe I said that.” Though the email did not contain harmful facts about the case, it showed the witness to be temperamental and sarcastic. It distracted from the witness’s helpful expertise in the subject matter at issue.

Provide Email Training for Employees

Periodically train, and re-train, employees on email usage—even the CEO. Training topics will also apply to texts, personal notes, calendar entries, and voicemails. Here are some suggested topics:

“Phone it in.” Verbal communications do not create records that must later be produced in discovery. While coworkers may recognize venting, bravado, and sarcasm as such, those things come across as sinister when your customer or competitor displays the email for a jury, judge, or arbitrator. Vent if you must, but do it by phone.

Read before sending—email body and fields. Always read through your message before clicking send. This creates a moment to reflect on what would happen if it were to become public. Also, look at the “to,” “cc,” and “subject” fields. Did you reply to all instead of to just the sender? Did the autofill insert the wrong recipient after you typed the first three letters in the “to” field?

Behave. Avoid name calling, rudeness, swearing, racism, sexism, etc. No jury wants to help somebody who talks (and thinks) like that. Even before arriving at the courthouse, such comments can sour settlement negotiations when your opponent finds out what you really think about them. Though you shouldn’t have to train on this topic, you do.

Avoid Exaggeration and Speculation. When discussing a customer’s problem with your product, don’t write things like “this is the end of the world.” You are exaggerating, but at trial it will look like it was the end of the world. Likewise, when internally emailing about customer disputes or regulatory issues don’t speculate that your product or service is defective. Yes, problem-solving requires the ability to recognize that you may be at fault, but don’t allow email speculation to unnecessarily create evidence that you are.

Copying Your Attorney Doesn’t Make it Privileged. You can’t protect an email from disclosure simply by adding your attorney to the distribution list. Privilege is for only confidential communications with your attorney for the purpose of obtaining legal advice. Copying an attorney won’t turn an ordinary business discussion into a privileged communication.

Consider Adopting—and Enforcing—an Email Retention/Deletion Policy

Courts have recognized that email deletion policies do not necessarily amount to spoliation. Such policies can result in fewer emails to gather, review, and produce in litigation. However, beware; once litigation reasonably can be anticipated, automatic deletion must be suspended and potentially-discoverable emails must be preserved.

Crafting these policies can be complicated. Guidance from the Sedona Conference, an institute for the advanced study of complex litigation, cautions as follows: email retention policies must be reasonable in purpose and reasonable as applied. They must take into account any applicable statutory and regulatory mandates that may directly or indirectly govern the management of email and, regardless of those requirements, the policy must recognize the need to preserve and produce information sought in legal proceedings.

Customization is a must. For example, financial industry communications, protected health information, and emails of governments and public agencies are all subject to different retention requirements.

Additionally, policies for email deletion must be neutral—that is, done without regard to whether a particular email is potentially helpful or harmful. For example, a North Carolina Federal Court held in 2010 that U.S. Bank’s policy of purging all emails after 90 days was reasonable in that case, noting that It appears to be a neutral policy aimed at managing the presumably large volumes of email generated by a sizeable company. Additionally, the policy runs the risk of destroying not only harmful emails, but also those that may have benefit to U.S. Bank ….

Again, such policies are not a one-size-fits-all solution. Moreover, a policy is useless unless it is enforced.

Take a Moment to Practice Good Email Hygiene

Reviewing email practices is not high on anybody’s to-do list. However, taking a little time to develop good habits and policies can keep you on the high road if and when litigation strikes.

About the Author

Brad Friesen is an attorney at Bell, Davis & Pitt. Brad has 17 years of litigation experience representing clients in business disputes involving contracts, business breakups, trade secrets, non-compete agreements, and unfair trade practices. He also represents clients involved in lease disputes, eminent domain cases, and other kinds of real estate disputes. Brad also serves on a number of Winston-Salem non-profit boards.