We all should know by now that if you put something on the web, like that picture of you drinking at a frat party (underage!), it NEVER goes away and practically anyone who cares to look can see it whenever they feel like it.
As we over-share everything in our lives on social media and as a whole generation only communicates in 140 characters or less, one of the biggest legal headaches is keeping emails, texts, and other written communications out of the hands of opposing counsel.
I know this thing is nothing new. I had some issues when I was working in-house. I remember some employees sending emails to convey some less-than-favorable news to the department, rather than allowing me to speak with the head of the department about the sensitive matter.
Those things happened, and the company would deal with it.
So what’s changed?
I left corporate behind in 2006. There was no social media to worry about. We weren’t texting junkies. We actually knew how to use the phone, and more often than not that phone was not mobile, and it was owned by the company.
Things are different today.
We put more in writing today, every day, than ever before in human history. We do it from our mobile devices from anywhere in the world.
Seriously, can you imagine the legal headaches when the texting-only generation makes its way into the workforce? These young people can’t stop texting long enough to drive a car. Calling someone is an arcane ritual that their grandparents did. Do we think they’ll think twice before sending out that smoking gun email or text that makes opposing counsel dance around his office?
I can just see this text from Engineer 1:
STOP ALL WORK! I think we infringe XYZ Company’s patent.
And Engineer 2 responds:
Attorney Smith told me that there’s a 70% chance we infringe. I think it’s OK to keep working on that project.
Why are these texts so scary for attorneys?
If XYZ Company sued for patent infringement, this sort of text exchange would be a great piece of evidence to prove that the Defendant willfully infringed the patent. It shows that Defendant’s employees knew about the patent, knew they possibly infringed the patent, but decided to move forward with the infringing product anyway. If the Court determined that Defendant willfully infringed, Defendant could be forced to pay triple damages to XYZ Company. That’s a lot of money.
To avoid this situation, the attorney would normally convey the message without reducing it to writing, although a written communication from an attorney to the employee might get the benefit of Attorney-Client Privilege.
HR and legal departments should start thinking about training programs that teach one of the golden rules of business. For those of you over 40, you might remember it…“If it’s bad news, don’t put it in writing.”
Too many people don’t know to pick up the phone to pass on the bad news. We’re so used to communicating via email and text that we’ve forgotten the consequences of putting too much in writing.
In the corporate world, it’s not your grandmother or a future employer you have to think about. It’s opposing counsel. You need to be thinking, what would happen if our legal adversary saw this?
I guarantee opposing counsel will embarrass you more over that errant text regarding patent infringement than any drunken picture of you ever could.