Frequently Asked Questions
Q. What's the worst that can happen when attorneys can't see the risks and so try to protect their corporate clients by training their employees how to write?
A. On February 20, 2013, attorney Lori B. Leskin wrote an article for the American Bar Assn. section on Litigation, addressing the topic of Product Liability. The title: "Assessing Litigation Risks Before It's Too Late." To read her article, click here.
Under a subhead, "Write Right," she wrote:
"Thus, it is important that company employees are trained on how to write and create documents early on in their careers. It is important, too, however, that litigation concerns not serve as a block to true scientific discussion and that employees not be—or feel—discouraged from expressing actual concerns or discussing factual information for fear of litigation. This is not a matter of “covering up” bad information. Rather, the focus in document training is on the creation of accurate documents; it is about injecting thoughtful, common sense discipline into internal corporate writing to avoid the unintended consequences that flow from speculative, inaccurate, or insensitive language. Employees must be taught to think carefully before generating documents, and they must understand the potential harmful consequences their written words can have on the company." (Boldface added.)
Attorney Leskin's advice is carefully phrased. But training employees how to "write right" doesn't preclude other attorneys from trying to train employees to not "write wrong."
How would anyone train employees to not "write wrong"? The answer, of course, is by giving examples of what not to write. That's what happened in connection with GM's Ignition Switch debacle. GM's attorneys wanted to stop its engineers from using "charged" words, so they created a "word rug" to hide the truth of what its engineers had been saying. In addition to 63 other words and phrases, GM's attorneys advised GM engineers to "not write" the following six:
Challenger, deathtrap, Hindenburg,
Kevorkianesque, Titanic and "you're toast."
Read "These Are The 69 Words GM Employees Were Forbidden From Using" by Sam Frizell, in Time. Published on May 17, 2014. To read Frizell's article, click here.
In paragraph 20 of the Consent Decree, GM was required to disavow what GM's attorneys had advised. (Even though most of his article is now behind a pay wall, you can find a link to the Consent Decree in Tom Gara's May 16, 2014 Wall Street Journal blog post article entitled, "The 69 Words You Can't Use at GM." To see the Consent Decree, click on the phrase "legal documents released" in the portion you can still read. Click here for Gara's article.)
And later, some of GM's corporate attorneys were fired.
So that's the worst.
Q. Do we enable an invasion of privacy?
Introductory note: Readers are advised that Intraspexion is not entitled to practice law or give legal advice. Readers must NOT rely on any discussion of a legal issue without consulting with their own attorney.
A. No, not when the appropriate corporate policies in place. We are aware that the act of monitoring internal emails raises a significant privacy issue. While it is not our purpose to provide our clients (or potential clients) with legal advice on this or any other issue, we have considered the subject of privacy (in this context) at some length.
In Holmes v. Petrovich Dev. Co., LLC, 191 Cal. App. 4th 1047, 1068–71 (2011), the California Court of Appeal held that an employee had no expectation of privacy in the emails she sent to her attorney from a company computer because the company had a policy against using computers for personal reasons and the policy stated that the company could monitor all emails. The court in Holmes emphasized that the computer used to send the emails “belong[ed] to the [company],” that the company had a policy against using its computers for personal reasons, and that the employee was “aware of and agree[d] to these conditions.” Id. at 1068; see also id. at 1068–69 (“Holmes used her employer’s company e-mail account after being warned that it was to be used only for company business, that e-mails were not private, and that the company would randomly and periodically monitor its technology resources to ensure compliance with the policy.”).
But suppose that employee never reads or agrees to the “no privacy” policy or agrees to the policy but someone in authority undermines the policy by conduct; or that the company knows the employee is using a company device, e.g., a smart phone, for personal purposes, pays to use it, and the company does not enforce the policy. In such cases, Holmes may be held not to apply. See, e.g., Mintz v. Mark Bartelstein & Assoc., Inc., 885 F. Supp. 2d 987, 998 (2012).
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