Communication Planning for Lower Litigation Costs

Email and chat are cornerstones of today’s businesses and can lead to costly litigation. Most companies only assess their communication practices after facing attorneys’ document review charges. Here are some ideas to improve your communications and prevent future headaches.

Review before sending. Take a moment to check your email for typos, the correct recipients, and the appropriate attachments. For instance, if you’re a plaintiff in a trade-secret case, you’ll want to demonstrate that you share confidential information only as necessary and with the right recipients.

Start a new chain for fresh ideas. Keep emails and chats separate if your team is working on multiple projects. If you find yourself in litigation, a single relevant statement in a document can lead to the full production of the email chain below. At worst, this means the other side could learn irrelevant, sensitive information that you otherwise would not have needed to share.

Maintain a consistent retention policy. Your business line will dictate which documents you need to retain and for how long (e.g., contracts, financial documents, HR files). For other documents, you can establish an automatic policy that deletes files older than a specified timeframe. If you find yourself in litigation, the existing policy will streamline what your attorneys need to collect and review. If you anticipate litigation, direct your employees to preserve materials that may be relevant to the case.

Exercise caution with the “reply all” feature. Use it only when necessary to avoid inbox clutter and unintended information distribution. In litigation, the excess copies of these emails result in higher data storage costs and additional attorney review time.

Avoid replying to emails when you feel angry or upset. Take the time to calm down and respond thoughtfully if you choose to reply at all. Do not forward the email to unauthorized recipients with your immediate thoughts. In litigation, communications that occur closest in time to the dispute will be scrutinized the most in court. You want them to portray you in a favorable light.

Avoid using obscenities or offensive language, even in casual conversations. Show respect.

When lawyers gather emails for litigation, clients sometimes inquire whether they can evade discovery by switching to chat or text. The answer is no. You may argue that collecting chats or texts is more burdensome, but that won’t automatically shield those communications. 

These tips can enhance your written communication skills, reduce the risk of embarrassing situations, and lower litigation costs.