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We’ve all shot off a reactionary text or email to a spouse, boss, business partner, client or co-worker in the heat of the moment. But, typically, we don’t pause to contemplate whether that communication could have long-term legal implications or that we might even face questioning about it under oath someday. But maybe we should. Now more than ever, businesses and employees need to protect their digital footprint at all costs.
Parents commonly teach their teens about the lasting nature of images and words shared on the internet and in written communications, but many adults fail to practice what they preach. Unfortunately, the cost of firing off angry words in an email or text without thinking it through is becoming increasingly high in business litigation. While we may not always have time to contemplate every possible outcome before we write, we can take steps to limit potential negative fallout from those words.
READ: Words Matter: Tips for Crafting Public Statements on Social Issues
As a long-time litigator, here are my top six do’s and don’ts to protect your digital footprint.
DO: Think before you ink
As a general rule, even when you’re not facing litigation, strive to be thoughtful and prudent about what you put in writing. Keep responses short and simple and stick to the facts — don’t exaggerate or make claims that aren’t true.
As a practice, I aim to pause before sending a sensitive communication and let my adrenaline rush wear off before responding to something inflammatory or upsetting. Sitting with your thoughts for several hours or even a day will almost always help you avoid sending reactionary or threatening communications.
DO: Keep work and personal emails separate
Hopefully, the need to do this sunk in during the public debacle surrounding Hillary Clinton’s use of personal email during her time as Secretary of State. But, even if you don’t plan to run for President someday, there are other important reasons to keep these email accounts separate.
First, nearly every employer has access to and control over your work emails. When you use your personal account to send business emails, you not only potentially risk the protection of your company’s confidential and proprietary information, but you also risk (and perhaps necessitate) having a review of all of your personal emails during the course of litigation.
Maintaining a wall between personal and business emails won’t guarantee with 100% certainty that your personal emails won’t be brought into your business litigation, but it certainly reduces the chances of that happening.
DO: Understand the scope of electronic discovery
The average person is often unaware of the depth and breadth of metadata that can be uncovered in litigation. What you send via text and email is, by and large, permanent. The same goes for social media and internal messaging platforms like Slack. When your digital footprint is under a microscope, emails, photos, texts and documents are open for scrutiny, and everything from when a file was accessed to who accessed it to where it was accessed will come to light. Apple’s latest updates allow iMessages to be recalled, “unsent” or even edited, but these messages may still be recovered in e-discovery.
DO: Be honest with your attorney
Typically, your computer, phone and other electronics will be imaged during electronic discovery. This means that all of the files that were stored, accessed and altered, emails sent and received, websites visited, time stamps and IP location for every activity — virtually everything you’ve said or done online — may be subject to discovery.
Even knowing this, clients may not be 100% forthcoming about the facts, whether intentionally or not. The sooner your attorney knows the facts, warts and all, the better off you’ll be. Your failure to share the full truth can irreversibly damage your case, even if you think a particular fact may not be relevant.
DON’T: Try to DIY
Litigation is time-consuming and expensive, and clients understandably want to save money. This often means they wait to consult an attorney until litigation is inevitable. However, they could have saved time, money and even potentially avoided litigation altogether if they had consulted an attorney sooner.
Once litigation commences, clients often want to try and save money by collecting documents and data from themselves, but it is preferable to have both sides use third parties for data collection. Doing so is far more likely to avoid costly discovery and production issues and will give you a better chance at a faster resolution.
DON’T: Delete the data.
You are legally obligated to preserve documents and data, including emails, texts, calendar entries and photos if you think or know you are heading toward litigation. If you delete data, it will be discovered. Not only will you potentially face significant monetary sanctions for the destruction of evidence, but the court will likely assume that the intent was nefarious — even if it wasn’t.
Don’t get caught leaving a trail of unsavory digital breadcrumbs behind you. Even if you never end up facing litigation, you’ll still benefit from trying to protect your digital footprint and considering the long-term effects of what you do online ahead of time.
Cara Thornton is a skilled lawyer with a practice focused on complex commercial litigation, including intellectual property, business torts, cannabis law, real estate, and other business-related disputes.