By Dr. Ken Broda Bahm:
The credit for the clever title goes to Olivia Nuzzi, political reporter for The Daily Beast, who tweeted that quotation out following the email hack releasing nearly 20,000 of the Democratic National Committee’s emails just ahead of their national convention. The result of several intrusions, which seem to bear a circumstantial connection to Russian intelligence agencies, the WikiLeaks email dump served as an embarrassment to the committee, belying their earlier claims to neutrality in the primary battle between Hillary Clinton and Bernie Sanders, and prompting the swift resignation of DNC chair, Debbie Wasserman Schultz, on the eve of the convention.
The worst of the emails, detailed in the Washington Post, carry a few important lessons on how emails shouldn’t be used. Every employment lawyer — and a fair proportion of lawyers in other areas of litigation — know that the candor and the presumptively private, but not really private, nature of email communications can often cause problems in litigation. People write and send email as if they are in a personal bubble, but what feels good at that moment behind the keyboard can often sound much worse months or years later when it is presented in deposition or trial. In truth, the only truly confidential emails are those between you and your attorney. And given the existence of hackers and the risk of accidental forwards and reply-alls, even those should not be considered immune from possible release. If employees took this title to heart, and emailed as if they were writing text that would someday be read aloud in a deposition, then opposing parties would have a lot less to work with. In this post, I will use the example of the DNC hack and share five good rules for litigation-safer email communications.
1. Remember Your Role, and Stay in Character
The recurring theme in the DNC emails is that the correspondences, including Wasserman Schultz’s, were acting likes fans of Hillary Clinton and not acting consistent with their claimed neutrality during the party’s primaries. There are other examples of slips in character. For example, in May after the Sanders campaign prematurely announced that there was an agreement for another debate in California, DNC Communications Director Luis Miranda replied to other staff, simply, “lol” (that means “laugh out loud” for the non-texting generation). Role consistency is important in litigation contexts as well. In dealing with a failing employee, for example, a HR director’s role is to help the employee come into consistency with what the company needs, and then to reluctantly terminate only if those efforts fail. Any communications that instead convey that the director is simply providing foundation for future termination, or “working them out,” are communications that will help a future plaintiff.
2. No Venting
Email is a good tool for conveying information and facilitating discussion. It is not a good tool for just blowing off steam. Following an outburst at Nevada state’s Democratic convention, Debbie Wasserman Schultz complained that Sanders’ campaign manager, Jeff Weaver, was a “damn liar,” and added that it was “particularly scummy that he barely acknowledges the violent and threatening behavior that occurred.” That communication serves no function other than allowing Schultz to get it off her chest. For employees, and particularly for managers, a good rule of thumb is this: If you feel the need to vent, either let that moment pass, or pick up the phone if it doesn’t.
3. No Private Plans
If the planning is specifically intended to be outside the awareness of the public or some specific group, then it is probably better to make those plans in person or by phone. When DNC Chief Financial Officer Brad Marshall suggested the possibility of planting an individual at a rally to ask Sanders whether be believes in God or is an atheist, because “My Southern Baptist peeps would draw a big difference between a Jew and an atheist,” that rightly comes across as plotting. It is a somewhat dirty trick from one’s own party, and it doesn’t help that the email creates a record of the DNC considering active measures to thwart one of its candidates and help another before the voters have decided. If a plan is truly meant to be private, then it probably doesn’t belong in an email exchange.
4. Don’t Engage in the Very Behavior You Might be Accused of
When management and human resources discuss the reasons they should use for a termination via email, that can end up sounding a lot like a pretext. In the event that a terminated employee is likely to allege that there is a vendetta, don’t create emails that sound like a vendetta. When the DNC faced repeated allegations from the Sanders camp of coordination between the Committee and its favored candidate, you had the campaign lawyer of that candidate Marc Elias offering, “My suggestion is that the DNC put out a statement saying that the accusations [of] the Sanders campaign are not true.” So that can end up sounding like a “Let’s deny it,” when the “it” is exactly what is happening over email.
5. Watch Your Language
When Obama was asked to travel across town to help the party pick up a $350,000 donation and replied that his schedule didn’t permit it, DNC mid-Atlantic and PAC Finance Director Alexandra Shapiro replied to other staff, “He really won’t go up 20 minutes for $350k?” “THAT’S f—ing stupid.” Helpfully, the DNC National Finance Director Jordan Kaplan responded, “Or he is the President of the United States with a pretty big day job.” Great advice: Review before you hit send, and ask yourself, “Is it professional?” And maybe add, “Is it necessary?” and “Is it helpful?”
During World War II, there was a government message to the military and civilian population alike that, “Loose lips sink ships.” In an age of email, perhaps we should update that phrase in a way that the DNC should take to heart: “Loose fingers? The effect lingers.”
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Other Posts Bearing on Employment Litigation:
- Understand the Whistleblower
- Take a Note From an Anonymous Law Firm: Don’t Look For Discrimination if You Don’t Intend to Do Anything About It
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Image credit: 123rf.com, used under license
Debbie Wasserman Schultz