As a result of the coronavirus pandemic, workforces are now decentralised and employees are largely working from home. This has its benefits, but it also comes with added risks. While we are all distant from each other, we may be relying more on the use of email, voicemails, IMs, or even texts and WhatsApp messages. The conversation you would usually have with your colleague at the printer has instead been documented. Each document created is one that could potentially be disclosable to an opponent in litigation.
For the purposes of disclosure, 'document' means anything in which information of any description is recorded. It covers paper and electronic documents, emails, text messages, social media, voicemail, audio and visual recordings. It also includes information that is stored on servers and back-up systems and electronic information that has been 'deleted'.
The current climate has led to an increase in contractual claims, with many businesses dealing with distressed contracts, staff issues, distressed leases, and force majeure events. This, together with an increase in "documentation" being created which could potentially be damaging in litigation, means business leaders need to refresh control over the creation of communications on sensitive topics, to manage risks, and to mitigate against possible exposure.
So here are our top five tips for doing just that…
1. It's good to talk
Often it's better not to create documents about issues which are in dispute, especially if commenting on your own company's failings.
If in doubt, pick up the phone. It's better to speak to someone and air your thoughts, instead of committing to writing something which is potentially detrimental. Consider holding a virtual meeting or conference call to discuss issues, and avoid documenting the discussions where possible.
Be careful what technologies you use though. Some video conferencing platforms may be more susceptible to hacking. Also be wary during calls with multiple 'rooms' that you do not enter the wrong room and say something that you do not want others to hear.
2. More haste, less speed
When you do send an email, think about what it says before you press send. Read it. And read it again. Would you be happy if a Judge were to see it? Could anything in the email be used against you?
Email often results in widespread distribution of documents. Review emails before forwarding them. And look who is included in the addressee box!
3. Share facts, not opinions
Unless communicating with lawyers, keep things as factual as possible and avoid emotive language. Try not to record views on whether something was done badly, or comment on potential weaknesses.
4. Think about why a document is being created
Some documents may be subject to "litigation privilege", which means that you will not have to disclose them to your opponent in litigation. This type of privilege covers confidential communications between a business and either its lawyers or third parties, but only if they are for the sole or dominant purpose of preparing for or dealing with litigation which is already underway or reasonably contemplated.
Other documents which are created in relation to the same incident, but for other purposes, will not be covered by litigation privilege, and will be disclosable to your opponent in any litigation. So think about why a document is being created, and be careful what you say in your internal communications and your communications with third parties or other professional advisers.
5. Instruct lawyers as soon as possible
If a dispute arises, lawyers (external or internal) should be brought on board as soon as possible. This may maximise the protection afforded by 'legal advice privilege'. This usually protects the confidentiality of lawyer/client communications from being disclosed, provided those communications are for the purpose of seeking or giving legal advice. So speak to your in-house team and seek their input.
We know that in the real world there's a limit to the practical steps that you can take. However, businesses should be aware of the issues surrounding document creation and try to follow these top tips to minimise the risks. If you would like further advice on any of these issues, please let us know.