Don’t Put Nuttin’ in Writin’

Stephen Evanoff

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?

About Stephen Evanoff

Stephen Evanoff is Vice President of Environment, Health and Safety for Danaher Corp. and President of NAEM’s Board of Directors. Follow him on Twitter at @SteveEvanoff.

View all post by Stephen Evanoff »

15 Comments
  1. Bob Brayley

    April 23, 2010

    Steve,
    Your advice is right on! Think twice before you hit the sent button. On the flip side, it is imperitive that we communicate, particularly when there are problems. If we don’t, the organization will not learn from its mistakes and is doomed to repeat them.
    Bob

    • Richard MacLean

      April 23, 2010

      Bob,

      Provide me with some examples or other information and I’ll quote you in my article. If I get enough “meat,” I may submit it to Environmental Law Institute’s Environmental Forum that I write for occasionally.

  2. Richard MacLean

    April 23, 2010

    There are upsides and downsides to “thinking like a lawyer” in handling internal and external communications. There will be an article on this subject appearing later this year in my column in EM Magazine. It was inspired by a recent meeting on “Law and Sustainability” at ASU.

  3. Jay Dietrich

    April 23, 2010

    Excellent advice, which can be further augmented by focus on facts, not opinion and emotion,in your emails. If you want to “fire for affect” do it in a phone call or a face to face meeting.

  4. William D'Alessandro

    April 23, 2010

    New York mobsters can lick your Chicago crime bosses any day. Dats the trut.

    In all seriousness, know that forensic companies are available for hire to trace your tweets and your old text messages. Crosslands Bulletin has not unearthed any examples of this in EHS mangement cases yet, but I know that such investigations have been used with success — sometimes for the defense!

  5. DS Dumond

    April 23, 2010

    Emails are an important communication tool used during projects to quickly communicate thoughts, ideas, problems, etc. Unfortunately, the litigation process which renders those communications discoverable complicates matters. I managed a very large and proactive site decommissioning including a remedial program for both soils and groundwater on a 100-year old facility with a long industrial history and many possible responsible parties. We were the last tenant and thus wanted to leave the site with little long-term liability although other parties contributed significantly to the complex site contamination. Although we had executed (up-front)contracts from several responsible parties (international firms with billions of dollars) whereby they would pay an agreed-upon percentage of costs, they did nothing for years were invited to meetings, sent monthly site activity notes, etc. They than chose to litigate against us and the court required a PDF of ALL communications, including emails. They ultimately settled, but what a huge cost. It is difficult to think how we (EHS professionals) can always be thinking like a lawyer as well.

    • William D'Alessandro

      April 23, 2010

      Every EHS manager must think like a lawyer. They used to, years ago. They still must.

  6. Jack Paul

    April 23, 2010

    Hi Bob,
    I recently heard that a senator, whose name I forgot, does not have an email address. Hmm! That tells us something. I seldom use email when discussing sensitve issues. In many instances, phone calls or face to face meetings work great to resolve such issues.

    • William D'Alessandro

      April 23, 2010

      Jack Nicholson: “I ordered him to have Santiago transferred immediately.”

      Tom Cruise: “Why?”

      Nicholson: “His life might be in danger.”

      Cruise: “Grave danger?”

      Nicholson: “Is there another kind?”

      Moral of the story: No politician (or political appointee) whom I have interviewed for Crosslands Bulletin in the past seven or eight years, has ever responded to me via E-mail. They always telephone, unless it is simply to refer to a document or send me a statement that is already on the record in Congress or that they want on the record.

      EHS managers must assume anything said in an E-mail will be public, either in print or in a court of law. Nothing wrong with speaking frankly in E-mails (and tweets and texting), but just assume that whatever you say is not private.

  7. Jeff Smith

    April 23, 2010

    Stephen Evanoff of LMC fame, here’s a old voice from Middle River. Drop me a line as I’d like to catch up.

    • Stephen Evanoff

      April 29, 2010

      Jeff:

      I’d like to reconnect with you. How about contacting me through my LinkedIn profile and sending me your current e-mail address.

    • Stephen Evanoff

      April 30, 2010

      Jeff:

      Good to hear from you. Let’s reconnect. Please go to my LinkedIn profile and send me a note with your e-mail address.

  8. Bruce Klafter

    April 23, 2010

    I also grew up in Daley-era Chicago, but Machine politics is buttin up against corporate CYA in a lot of cases. We have regularly given our employees some instructions about do’s and don’t in EHS communications, for some of the reasons you’ve mentioned. I also remind employees that we have another communication device sitting on our desks or hanging from our belts – reach out and touch someone if you have a sensitive issue to discuss. Having practiced law for many years and being an environmental manager more recently, I do think the higher priority is to communicate effectively, meaning to the right audience, at the right time and with the “right” words, i.e to convey the needed information, to influence or compel the right actions AND to not exaggerate, obfuscate or agitate. The worst type of communications I have seen in 10 years inside a major company are ones aimed at getting an immediate response, where the sender is “firing for effect.” We once had an executive compare a product feature to the Pinto automobile when not a single problem had been reported from users. He wanted a response now and he was willing to do whatever it took to get some attention. Very few of us ever have or ever will be involved in litigation over our activities, so I wouuld not overdo the self-editing out of a fear of later being in the courtroom. My own practice is to rread each and every email I compose before hitting the send button. On the other hand, I distinctly recall the time when environmental managers were commonly referred to as the “designated felons”! BTW – this blog post will self-destruct in 90 seconds so you can’t quote me on that!

  9. Bruce Klafter

    April 23, 2010

    p.s. I didn’t do a very good job of re-reading my own email since I missed a few typos!

  10. Terry Moody

    April 26, 2010

    Stephen – agree with your summary, good advice.

    I well remember an old mentor from way back when in the early days of e-mail giving me three sound pieces of advice regarding e-mail:-
    1. Never respond to an e-mail when the original mail made you angry. Cool off first.
    2. Never feel you have to respond immediately.
    3. If you are unsure about the content you are about to send then do not send, sleep on it and re-read in the morning.
    Every single mail that I regretted that I have sent could have been avoided if I had paid more attention to the three guidelines above.

Leave your comment