"Never write if you can speak, never speak if you can nod, never nod if you can wink." —Attributed to the 19th century Boston political boss Martin Lomasney. The words of 19th-century Boston political boss Martin Lomasney have never rung truer than in today’s modern age of email communications. More than ever, the words we type in daily emails run the risk of eventually becoming available for public consumption. Beyond the embarrassment and bad press, lies the potential for such written communications to be used by an adversary in litigation. Tales of embarrassing e-mails surfacing during litigation are legendary. The risks to a company, it’s personnel, and it’s reputation are very real. As a general rule, parties to litigation “may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense….” With the exception of certain limited circumstances, written internal business communications can be discoverable in subsequent litigation. Internal E-Mails can Lampoon your Defenses: ADA Claim Example In this cautionary tale, a fired worker pointed to an HR professional's e-mail raising concerns about his health as evidence of discrimination in violation of the Americans with Disabilities Act (ADA), and a federal district court relied on the e-mail to let the claim advance. In September 2014, Mid South hired the plaintiff as a maintenance technician. After accepting the job offer, the plaintiff completed a post-offer medical history questionnaire, disclosing that he had a prior shoulder injury that limited his range of motion and overhead lifting ability. He did not share any other impairments or conditions. The plaintiff completed his 90-day probationary period and received a pay increase. His supervisor soon began noticing performance issues and had concerns about his ability to safely work in the plant. The supervisor claimed that he received complaints that the plaintiff showed up for work smelling strongly of alcohol. The supervisor also claimed that the plaintiff tried to delegate work that required special training to an employee who did not have the training. These incidents allegedly resulted in verbal warnings. In June 2015, the plaintiff began having breathing problems. A lung specialist diagnosed him as having reduced breathing capacity and an esophagus disease that developed due to breathing asbestos at a prior job. A lung X-ray revealed that the plaintiff had undiagnosed tuberculosis as a child or young man, which had become dormant. He was referred to a cardiologist, who decided that the plaintiff needed a heart catheter. In mid-August 2015, the plaintiff met with a Mid South HR manager and told her about his conditions and that he was having a heart catheterization procedure done on Aug. 18, 2015. On Aug. 13, 2015, the HR manager e-mailed the plaintiff's supervisor with concerns about the plaintiff's health affecting his continued employment. The HR manager wrote that the plaintiff "stated that his doctor says he doesn't need to be working in this environment with all the health problems he has" and he "should get out on disability." She explained that this "raised a red flag" for her and that the plaintiff's issues originated before he worked for Mid South. She wrote that this "really bothers" her. The plaintiff had the heart catheterization procedure on Aug. 18, 2015, and was able to return to work on Aug. 21, 2015, without restrictions. In mid-September 2015, his lungs became irritated by plastics dust when the machine he was working on overheated, causing him to cough repeatedly and creating some breathing problems. The plaintiff claimed that he used his inhaler and after 10 minutes was fully recovered. Shortly afterward, he was scheduled to receive his annual review, at which he would have received a raise, 10 more sick days per year and 40 hours of paid vacation per year. In an e-mail dated Sept. 21, 2015, the supervisor told the HR manager that he was firing the plaintiff because he was "not qualified to be a maintenance technician." The plaintiff claimed that the supervisor told him that upper management wanted him gone, and he accused the supervisor of making other disparaging comments that included "all of these sick people make our insurance liability and premiums higher." The plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that he was fired in violation of the ADA. The EEOC agreed and issued a letter of determination in favor of the plaintiff and later brought a federal lawsuit. Mid South filed a motion for summary judgment. The court determined that Mid South did not have enough uncontested evidence to win the motion. The plaintiff presented evidence that the supervisor and the HR manager had referred to his medical condition with respect to employment decisions, including his firing. Mid South did not conclusively prove that the plaintiff's medical problems prevented him from safely doing his job, which would require an independent assessment of his condition and the duties of the position. EEOC v. Mid South Extrusion Inc., W.D. La., No. 3:17-cv-01229 (Oct. 18, 2018). HR Pointer: Employee medical issues can create thorny situations for HR professionals, who sometimes have to help employers make difficult business decisions in light of them. E-mails about employee health issues should be worded very carefully. Protecting Correspondence: The Attorney-Client Privilege Any discussion of protecting electronic communications must begin with a basic refresher on the attorney-client privilege. Generally, the privilege protects communications (including e-mail) sent from a client to a lawyer from forced disclosure to third parties, and most jurisdictions have accepted, as a corollary to this rule, that communications from a lawyer to a client are also privileged. Moreover, communications from a lawyer to a client are also generally protected by the work product doctrine in the event of anticipated or actual litigation. To assert the privilege, these basic elements must be present:

• a communication between lawyer and client (person or corporation);
• the purpose of which is to seek or obtain legal advice;
• the communication is made to a lawyer acting in his/her capacity as a lawyer;
• the communication must be made and kept in confidence.

Protecting the Company's Privilege Given the limited application of the attorney-client privilege, most email correspondence done in the regular course of business will be discoverable in litigation and thus, possibly made public and/or used in support of a claim made against your business. Of course, documentation and email communications are imperative in the modern business context. Indeed, good documentation of employment and business decisions can be helpful in defending a business in litigation. However, that same documentation and email communication can also be devastating in a lawsuit where caution is not exercised in what and how one is communicating. With that in mind, here are some tips to minimize the potential impact:

1. Email Messages Are Business Records. Remind employees in your email policy that email messages are official business records subject to corporate retention requirements and discovery. Further, remind employees that all email communications, including internal email communications, should reflect the same professionalism and attention to detail that would be afforded other forms of written communication. If you wouldn’t put it on letterhead, it doesn’t belong in an email!
2. Consider your recipients and minimize. Consider the context and only send email to your target audience.

3. Label legitimate communications as “Privileged & Confidential – Attorney Client Communication.” Not all communications to your lawyer are privileged, but such a label on potentially privileged documents may help highlight your intention and draw the attention of the reviewing attorney.

4. Avoid exaggeration and inflammatory rhetoric. Superlatives and dramatic language may be useful in getting your point across, but may also take on a life of their own in litigation.

5. Watch forwards and attachments. These are discoverable too.

6. Consider public perception. If possible, don’t write anything you wouldn’t want shown to a jury on an eight-foot screen.

Of course, when in doubt, the safest method is to simply pick up the phone. If you would like to discuss these issues in greater detail, under the protection of attorney-client privilege, feel free to pick up that phone and contact Stephen Setliff (804-377-1261) at ssetliff@setlifflaw.com or Megan Wagner (804-377-1275) at mwagner@setlifflaw.com.