Sanitizing Emails

At the recent CSIA executive conference in Santa Fe, I spoke on a serious topic, but with a tongue-in-cheek title. The title was “How to Write Letters and Emails That Don’t Drive Your Lawyer Crazy.” Following that talk, I probably received more requests for my slides than after any other automation law talk I have given then or since.

I should not have been surprised. Integrators, OEMs, and process end users—as technical-minded as they all are—typically don’t think much about “legalities” until they find themselves on the business end of, say, a subpoena. Now, don’t get me wrong—I’m not grousing. As a lawyer, being the clean-up guy on a project that has gone awry keeps my kids in college. But, like all lawyers, I like to be on the winning side—and what my automation clients put down in their emails can greatly affect whether a “win” (however you define that term) is even possible.

Here, in a nutshell, is the issue. Although the general public’s conception of the legal profession mainly consists of people testifying on the witness stand, the reality is much more tedious than that. There are literally a hundred days spent by lawyers debating what was said on paper for every Law and Order cross-examination moment. Why is that? It’s because what people say in correspondence and memos at the time the events are happening—not after the lawyers got involved—has much greater credibility. Which brings us to emails. Emails, in particular, are popular targets of lawyers because they tend to be more informal—and less well thought-out—than formal correspondence. (It’s even gotten to the point where courts have created new rules governing the disclosure of emails to an adversary in a lawsuit, and many big law firms—mine included—have set up groups of lawyers with special expertise in “electronic discovery.”)

So what’s an automation company to do? I would offer the following suggestions:

First, put a clause in your contracts or specs that make clear that only certain persons have the authority to speak on behalf of the company.

Second, establish an internal policy for sending out important (or semi-important) project notices that makes clear that not only do the notices need to come from the project manager, but they also need to be approved (for example) by the project manager’s boss. For larger or more important projects, establish a “run it by the lawyer” policy (which means, you first write the draft email, run it by the company lawyer, then send it out after it has been properly “sanitized”).

How should emails be “sanitized”? There are a few simple rules:

They should be consistent with the “story” that your company would want to tell about the project if a problem were to erupt—and then need to be decided by a third party.

Ideally, they should be easy to understand (i.e., non-technical to the extent possible) for the same reason.

Where it makes sense to do so, relate your “message” regarding project activity to a contract term. Rarely paraphrase contract terms. Quote the key parts word-for-word.

Avoid making statements of fact that an opponent may use against you if there is any chance you do not yet know or fully understand all the facts.

Get into the practice of using the phrase “among other things” when listing items, problems, task, etc. That simple device may save you later if you inadvertently leave out an important concern.

Now, despite the dangers of an inopportune statement in a hastily transmitted email, the conclusion that you reach from this should not be that one might avoid all problems by shutting down the practice of sending emails altogether. That would be a mistake—and would indeed create your lawyer’s worst nightmare: a legal confrontation where the only contemporaneous account of what happened was written by the enemy!

Author Information

Mark Voigtmann is a lawyer with Baker & Daniels, LLP (Washington, DC, Indiana and China). His group assists the automation and process industry in structuring projects and resolving disputes.( Mark.Voigtmann@bakerd.com or 317-237-1265).

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