In a recent patent infringement trial, our client produced a collection of what were innocuous emails going back several years. Unfortunately, once in the hands of a skilled lawyer, these emails became a central issue in the case, despite having nothing to do with infringement. The emails were a series of sales representatives’ comments on competitors products; off-the-cuff comments about the value and benefits of competitors’ products. Years later, the emails were presented to the jury and described as an admission our client was “desperate” for new technology, was “panicking” because it was failing to keep up with evolving technology. The emails were used to spin a tale of copying that was not true. The emails seemed innocent enough, i.e., you should see what Company X is doing; we should look into something like this. The reply, however, was primarily oral conversations, advising the field representatives that the company had been developing competitive products along those lines for months – long before the competitor’s products were available. Because only one end of the conversation was in writing, the witnesses who offered the other end of the conversations were portrayed as liars and cheats. While the emails would have barely raised an eyebrow at the time they were sent, the emails turned into “proof” of a million dollar claim of corporate cheating and copying. Responding to these emails took a concerted and expanded effort, hours of trial time were devoted to overcoming the false narrative, turning these emails into some of the most expensive routine communications the company had experienced.
E-mails, texts, and other forms of electronic communication have become the most efficient method of communication today. With this efficiency comes pitfalls. Emails are often used as a replacement for telephone conversations or “thinking out loud.” These casual conversations may seem harmless at the time – an email or text is often sent without much though on how the abbreviated comments may be construed later.
While details of oral brainstorming sessions or conversations are rarely recalled years later, electronic brainstorming is saved. If the oral conversations are remembered, participants can describe the conversations in proper context. This is not the case with electronic communications. Each time an employee hits “send,” that employee is creating a permanent, written record for all to read years later. Sarcasm, humor, or any voice inflection that could be communicated through one-on-one conversations are lost in electronic communications.
What is more, jurors seem to place greater emphasis on evidence that is written. These documents can be displayed at trial, handed to the jury and often create more of an impact than oral testimony. The formality of introducing the “document,” placing an official exhibit tag on it, and having a judge “admit” it into evidence gives these written conversations seemingly more importance than testimony and yet most employees treat the electronic communications as unimportant.
Every employer should consider how it treats email communications. Employees should be made aware of the impact emails may have and reminded of the danger often. Anything an employee would not want projected onto a screen during trial should not be sent in an email. Anything that an employee would not put in formal business correspondence should not find its way into an email. Emails are part of the company’s records and all employees should compose emails with the same care that goes into more formal communications. Employers should also consider their document retention policies. The policies should comply with the law, but employers should retain emails only so long as needed. No employer should let the low cost of electronic storage mean that every utterance of every company employee be available for your competitor’s crafty lawyers to find and exploit. Your competitor need only find one “million dollar” email to ruin your case.