Unquestionably, the discovery process is the most costly and laborious part of litigation – collecting the evidence of the case (documents, records, statements, and the like) from the parties and others involved requires detailed focus. In today’s ever-changing world of technology, document production has become one of the biggest parts of the discovery process – requiring, in some cases, the production of hundreds of thousands of pages of documentation, wherein most, if not all, are not directly relevant to the pending lawsuit, but are “reasonably calculated to lead to the discovery of admissible evidence.”
In most business cases, a client’s biggest fear is the opposition’s location of the “smoking gun” – the one document which the opposition alleges changes the entire case (example: an email between co-workers, a record incorrectly notated, a stray memo depicting incorrect/improper conduct). First, in many cases, the issue is the lack of the existence of a document (failing to create an invoice for work performed, failing to notate a visit, etc.) which is most detrimental to a case. Second, in most cases, when asked if any such document exists or was ever created, a client will normally answer “no,” but because employees have more open access to create written records (e-mails) which at the time seemed innocent but can come back to harm the employer, this risk is ever-present. Third, in many, if not most, cases, any lawyer claiming to have found the “smoking gun” is bluffing, attempting to scare the opposition. However, the fear of the “smoking gun” document is real, and by implementing certain guidelines, a business can limit the common pitfalls of electronic documentation that may lead to or prolong litigation.
One of the most common – but understandable – mistakes a business can do is to fail to create a written record of a transaction or an occurrence which is the subject of a possible dispute. Whether the documentation is hand-written or electronic does not necessarily matter, but it is imperative a business, as its normal, everyday business practices, require employees create written documentation at all times for all goods and services rendered, regardless of payment. For many businesses, when something goes wrong, regardless of fault, a business will decide not to charge a customer for goods or services to somehow compensate the customer in an attempt to “make things right.” While waiving a balance owed can be appropriate (if said practice is the normal course of business for that type of situation), simply failing to notate the event occurred will lead to significant issues if litigation arises. Although the lack of documentation can easily be explained as a business attempting to help the customer – the very fact it requires an explanation is a red flag to a plaintiff’s lawyer, and eventually, could be to a judge and jury. Regardless of the truth, the perception of failing to create a written record is the business is attempting to hide something. In order for a business to properly protect itself, written documentation must never be compromised when it comes to the offering of goods or services, even in the event of complications and resulting refunds.
Two of today’s most common modes of communication are also the two most troublesome for businesses because of their permanence – text messages and emails. Unfortunately, most people – including employees – do not see text messages and emails as important or “official” communication, and therefore, do not think twice about sending a text or an email, regardless of the subject matter. Another common mistake made by businesses is to email or text a client after an issue arises. While usually performed to express sorrow, an email or text about an issue creates a written record which can be taken out of context at the time of trial – shown as admitting error when simply apologizing for the client’s disappointment, loss, etc. Unlike a conversation over the telephone, email and texts are permanent and can lead to significant complications if when it comes to discovery. It is also important to remember any phone, computer or other devise (including email addresses) owned by the business is potentially discoverable – including every document, text, picture or email on those devices. Often times during discovery, personal and embarrassing information can be found on devices because an employee used such device for personal rather than business purposes or sent a personal email through the company’s address. As texts and emails provide the opportunity for potentially embarrassing and possibly detrimental exposure during litigation, it is highly recommended a business draft, implement and enforce written policies and procedures regarding employee’s expected behavior and use of company equipment, including phones and computers. It needs to be crystal clear an employee is to use all company equipment – including a phone, computer, and even an email address – for business purposes only, and any use for purposes other than business are prohibited.
Technology has changed the face of the world forever – which includes businesses and litigation. As the lack of evidence can be more threatening than the existence of a “smoking gun,” it is imperative, as a normal business practice, to implement policies which require full documentation for every transaction and occurrence, regardless of the outcome. Use of email and text messages can assist a business in providing quick, effective communication to customers, but requires rules to limit use of these tools to appropriate, business focused communications. Further, limiting use of business property – including phones and computers – for personal use will protect the business and the employees from embarrassment in the event of a lawsuit. Given the “double-edged sword” nature of technology in business, it is best to establish policies and procedures which protect the businesses integrity and reputation should litigation arise and discovery become necessary.
Please feel free to contact our office to discuss any question or issue you may have or any other legal matter which may arise.