I grew up in Chicago during the reign of “Da Mare” (Richard M. Daley, Sr.) and a generation after Big Al (Alphonse Capone) ran the town. Back then, the quip was that only politicians and gangsters said, “Don’t put nuttin’ in writin.’” As the recent brouhaha over the flippant comments in e-mails between climate researchers illustrates, there may be wisdom in the way the old pols and mobsters operated, particularly when viewed from the perspective of an EHS professional.
Much of what we put in writing has the potential to find its way into litigation, such as class action lawsuits for environmental exposure, workers compensation claims cases, and Environmental Protection Agency and OSHA civil and criminal investigations. Yes, there is the attorney-client privilege doctrine. But it rarely protects routine communications, even when labeled “privileged and confidential.” I can remember sweating through a deposition where opposing counsel began several questions with, “now in this e-mail, what did you mean by…”
It’s difficult to discipline oneself 100 percent of the time, but I think it’s good practice to review e-mails on issues that have even a remote possibility of being discovered as part of the legal proceeding, before hitting the send key. I try to ask myself, “How would I explain this if I was under oath?”
What are your thoughts on how to manage EHS-related communications in our litigious culture? What experiences are you willing to share on wayward e-mails and text messages?