One of the takeaways from Lessons From Touching a Hot Stove: Legal Edition, a webinar Brian Clifford and I recently did for CSIA, was the importance of sanitizing your employees’ e-mails. Integrators, as technically-minded as they are, typically don't think much about the effect of their correspondence until they find themselves on the business end of, say, a subpoena. But, like all lawyers, I like to be on the winning side—and what my automation clients put down in their e-mails can greatly affect whether a win (however you define that term) is even possible.
Here, in a nutshell, is the issue. Because what people are saying in correspondence and memos at the time the events are happening has great credibility, these materials are the focus of considerable attention if there is litigation. E-mails, in particular, are popular targets of lawyers because they tend to be more informal—and less well thought-out—than formal correspondence.
So, what's an automation company to do? I would offer the following suggestions:
First, put a clause in your contracts that makes it 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, especially those in trouble, establish a run it by the lawyer policy. This means that you first write the draft e-mail, run it by the company lawyer, and then send it out after it has been properly sanitized.
How should e-mails 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, tasks, 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 e-mail, please don’t try to avoid all problems by shutting down the practice of sending e-mails altogether. That would be a mistake—and would create your lawyer's worst nightmare: a legal confrontation where the only contemporaneous account of what happened was written by the enemy!
Mark Voigtmann is a partner in the industrial automation and robotics practice at Faegre Baker Daniels LLP, a full service law firm. Faegre Baker Daniels is legal counsel to the CSIA. Mark can be reached at Mark.Voigtmann@faegrebd.com.