Your Very Own Wikileaks Scandal
Prior to the tragic shooting in Arizona, the airwaves were dominated with the Wikileaks saga, and the brouhaha caused by the release of classified diplomatic cables. The real damage caused by the leaked cables does not appear to be the unmasking of top secret, cloak-and-dagger spy novel stuff. The damage, it appears, is that other nations suddenly became privvy to what our government and our diplomatic officers think about them.
The takeaway for the average businessperson here is that words have consequences, and no more so than when there is an expectation that those words will never be dragged into the public square for scrutiny. Yet the average business is merely a lawsuit away from its own personal Wikileaks scandal, courtesy of the discovery provisions of the Federal
In a lawsuit, discovery is used by the parties to examine documents, communications, notes, files, and other sources of information (including people) that they believe will assist them in asserting their respective claims or defenses. As a rule, discovery is usually constrained to include only information that is relevant to the suit at hand, and attorneys have many tools at their disposal to keep the other side from embarking on irrelevant "fishing expeditions." However, all relevant information is fair game, and emails, memos, and other documents that might have been intended only for internal
For this reason, all business owners should consider adopting and enforcing a code of conduct for internal communications. Such a code should make it clear that all internal correspondence, such as notes, memos, text messages, and emails, are business documents first and foremost. Thus, employees should treat each missive with the same dignity and professionalism that they would treat any formal business transaction. Communications should be direct and sober in their tone—no inappropriate or snarky remarks, and above all, no sarcasm. Sarcasm is a uniquely verbal form of expression,
It’s not just that opposing counsel might try to make hay out of your comptroller’s tongue-in-cheek suggestion that "we should charge them double for all the work we’re doing for them and then skip town. LOL!" There is also the ultimate audience that you have to consider—the judge or jury that is going to hear the case. Lame attempts at college humor and other improper commentary in internal communications will detract from the overall gravitas that your attorney will need to establish for you and your company. A case might not be lost over an off-color remark, but there is nothing to be gained from giving the impression that you are running a slip-shod operation.
It is unlikely that the diplomatic community could avoid the embarrassment that the Wikileaks document dump caused. Governments need candid assessments of other nations in order to pursue their own interests, and sometimes those assessments are unflattering. But contrast this kind of candor in the service of national interests with, say, your office manager’s commentary on the size of your main supplier’s nose, and you can imagine the dim view that a jury might take of your company. When discovery can give outsiders an unvarnished peek inside your operations, you should be sensitive to what a Wikileaks-style document dump might reveal.