A Little "Smoking Gun" Control Goes a Long Way...
Back in 2010 a major auto manufacturer suffered through embarrassment and substantial reputational damage when a trove of "smoking gun" emails surfaced in the discovery portion of a series of lawsuits related to the alleged sudden uncontrolled acceleration of the manufacturer's cars. In direct response, attorneys (both in-house and outside counsel) across the United States spent the following weeks and months speaking to their clients about the risks of creating ill-conceived or ill-advised emails that could later come back to bite their organizations in litigation.
I happened to be one of those attorneys sent out on the road by my then-GC. At the time, I was in-house counsel for a Fortune 10 company that is perpetually recognized by Ethisphere as one of the World's Most Ethical Companies. With an underlying business philosophy focused not just on statutory and regulatory compliance, but also on always doing the "right thing" ethically, we weren’t concerned about finding a way to keep bad documents hidden. We were concerned about keeping neutral (or inartfully written) emails from creating an "optics" issue that could later be twisted to do reputational harm to the company.
Ultimately, the sermon we were preaching then – which is just as relevant today – came down to the New York Times test.* Before hitting "send" on a draft email, stop to think what the repercussions would be if your email were to land directly on the front page of the New York Times. If your words could be somehow misconstrued or twisted, don't hit "send". Rethink your message, choice of words, and the necessity of sending the email at all.
I was reminded of 2010 and the New York Times test earlier today when a story came across my newsfeed concerning a toxic tort lawsuit tied to the possible carcinogenicity of glyphosate (an ingredient in popular weed killers). Internal emails from a major glyphosate manufacturer have surfaced in which a senior executive discusses saving money on external toxicology and epidemiology experts, keeping overall costs down, and "ghost writing" an expert white paper – all in connection with the manufacturer's efforts to comment on a glyphosate review being conducted by the World Health Organization's International Agency for Research on Cancer (IARC).
There's no need to get into the merits of the lawsuit or the manufacturer's efforts (rightfully and above board) to influence IARC. From a reputational and public perception standpoint, the emails suggest that the manufacturer was somehow improperly attempting to influence IARC and – to make matters worse – was trying to do so on the cheap. This is the very definition of "bad optics". Now the manufacturer is stuck with smoking gun documents – even though there may have been no indication at the time they were written that the documents would someday be potentially harmful.
In addition to applying the New York Times test before you send an email that could someday morph uncontrolled into a smoking gun, consider whether in-house or outside legal counsel should be involved to provide additional insight and comfort. Recall that the involvement of an attorney in communications (oral, written, or electronic) can establish the attorney-client privilege – potentially protecting the contents of the discussion from disclosure (so long as the attorney is participating to provide legal advice). Finally, keep in mind that inclusion of in-house counsel in your business discussions is not always enough for the attorney-client privilege to attach (if there's any argument that the attorney is providing business advice instead of legal advice). Remember that involving outside legal counsel is always the safest way to establish and maintain all available privileges.
* The New York Times test is intended to be an apolitical test. The test was named before "fake news" became a thing, and before "failing @nytimes" became a common presidential tweet.