eLessons Learned - Full Article

A Litigation Lesson Learned From The Recent Scandal Involving General David Petraeus

Through his roles in both the United States military and CIA, General David Petraeus was a real life version of the captivating fictional characters that have been the protagonists in successful television shows and movies like 24Homeland, and the 007 franchise.  General Petraeus was about as powerful as powerful can get.  Ostensibly, given the positions that he has held, he should have known precisely how digital communications can be intercepted or recalled for later use. Yet, General Petraeus’ demise was hastened by his undisciplined use of technology, and it happened in a very public, embarrassing fashion.  General Petraeus went from having access to secret national intelligence wire intercepts and leading one of the most prestigious, clandestine intelligence operations that the world knows, to being brought down by reportedly salacious e-mails that he should have known did not simply disappear into cyberspace once he clicked send.  Far be it for me to pass judgment on any of General Petraeus’ actions given his service to our nation, but if he had a greater appreciation for the indelible footprint left behind by his e-mail activities, he might not be in the position that he is in today.  You might think it could never happen to you, but if the Director of the CIA can get snagged by his electronic communications, so can you.

There was once a time when electronic evidence in litigation was a foreign concept.  That time has passed.  Just about every case, to some extent or another, involves electronically stored information.  The idea of e-discovery in our system of litigation is here to stay because of the technologies that we use to work and live.  For their part, the courts have sent a resounding message that the failure to institute appropriate electronic records management protocols in most businesses will result in harsh sanctions and other devastating outcomes.  With an exponentially growing frequency, cases rise and fall on the story that the e-discovery tells.  Our culture simply runs on now ubiquitous digital age technologies.  It only follows that our disputes will increasingly hinge upon what is revealed from an ex post facto review of our exchanges using these modern channels for human interaction.

While this topic is fresh in our minds in the wake of the General Petraeus scandal, here are five simple rules (in no particular order) to be applied when dealing with e-mail and social media that will help ensure that digital age technologies remain a positive and productive component of your life and your livelihood:

1. Ask yourself, what would this look like as Exhibit A?

Once litigation starts, positions rise and fall on every word in a document.  The time to recant and back peddle is over.  Skillful attorneys will massage your every word in a way that supports their client’s case, even if you genuinely intended your words to carry a different meaning.  Unless you are writing precisely what you mean, don’t write it.  If not carefully crafted, the written word usually caries a very literal meaning.  Even if you have an opportunity to clarify something that has been reduced to writing, it is generally too late.  Think about it, that opportunity typically only arises after you have a motivation to change your tune.  If there is ever any doubt as to whether you would want your e-mail or social media post attached as an exhibit to a pleading or other official court document in a case involving you or your company, don’t send it or don’t post it.  A simple gut check, yes, but a powerful one.  Similarly, it is generally a safe bet to operate under the presumption that everything you write in an e-mail or post to social media is going to be used to recall historical events at some point in the future.  Taking this approach will not only ensure accuracy and clarity in your communications, it will also serve as an important check against being hung with your written words down the road.

2. Know when to let a cooler head prevail.

You do not even have to log onto a computer anymore to transmit an electronic communication that is capable of being infinitely retained in a comprehensive digital genome.  The time it took you to boot up your computer once served as an important cooling off period which might save you from frantically transmitting an ill advised e-mail message or social media post.  Now, people can respond to e-mails and post to social media from all over the world while on the go using their smart phones.  Moreover, because of the conveniences that technology have brought to our daily lives, there is now an expectation that there will be an immediate response.  Did you ever think about pulling off the road to respond to an e-mail while driving, or worse yet, do it while steering with your knees? If your gut causes you to question what you are writing in an e-mail or social media post, stop writing!  If you feel the urge to interrupt something requiring as much undivided attention as operating a vehicle, turn on the radio and relax! Without reducing your thoughts to writing, force yourself to let your ideas marinate for a bit, or run them past a third party.  A delayed response is orders of magnitude better than an imprudent response.

3. There are no do-overs.

With guideline number 2 in mind, social media, in particular, gives a false sense of security because it allows you to remove a post just as easily as it allows you to make a post.  Similarly, e-mail program developers have begun adding message recall features as a supposedly fail safe way of second guessing yourself after clicking send.  The problem with these “do-over” buttons is that computer forensic technologies are just as sophisticated.  Powerful software allows trained cyber detectives to retrieve that which you thought was pulled back in a matter of minutes with extremely little effort.  Even draft e-mail folders should be treated as discoverable using increasingly advanced computer forensic technologies.

4. Avoid lengthy threads.

As a general rule, it is infrequently necessary to respond to electronic communications by leaving the full thread of the previous message(s) in tact.  We all have received emails that chronicle a lengthy history of discussions between multiple parties, some of which are entirely irrelevant to the most recent thread, and some of which do not even include the same parties as the most recent thread.  This is especially dangerous with forwarded messages.  Replying to long message threads only increases the probability that something harmful will be transmitted somewhere it should not be.  If you must reply, cut down the message first.  In many cases, a separate, new message stating something like “I received your earlier message regarding abc, and here is my response to your proposal to do xyz” is a very good way to protect against sending out potentially hundreds of lines of archived thoughts as if they were your own without regard to such considerations as confidentiality.

5. “Reply to all” is rarely, if ever, advisable.

A message to which a “reply to all” is appropriate usually stands out in a way that invites everyone copied to be part of the next message, and that is a seldom occurrence.  I’ve seen messages inviting a response that all can see, but those are few and far between.  As a general rule, replies to all are never appropriate, and only invite the opportunity for problems.  Some e-mail software allows you to separate the “reply” button from the “reply to all” button in an effort to avoid the human error factor.  This is an especially good practice for enterprises dealing in high volumes of e-mails.  IT professionals are a great resource for discussions about implementing this type of protocol.

E-mails and social media posts are typically the most common, revealing forms of e-discovery in a litigation. Because these are user generated formats, adherence to these simple guidelines when communicating across these platforms will go a long way toward reducing the risks to you and your business.  The medical literature is full of ways to eliminate risk factors for illness with prevention.  Litigation risk from digital communications can be similarly managed.  If the Director of the CIA – with all of his supposed sophistication and aptitude for operating undetected – can have his electronic communications come back to haunt him in such a devastating way, we all can.

 

As a member of the firm’s Litigation Department, Matthew S. Adams practices in the areas of commercial civil litigation and white-collar criminal defense.  Matthew has significant experience in emerging issues involving the intersection of the law and technology, including the cutting edge and increasingly relevant areas of social networking, e-discovery and identity theft. Matthew is also a frequent guest lecturer at Seton Hall University School of Law on the topics of e-discovery and trial advocacy.

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