Document retention, and the host of related e-discovery issues, have been front and center for product liability attorneys for a number of years. Nevertheless, even with the best document retention program and the most sophisticated e-discovery system, companies and their attorneys are still going to have to deal with the documents themselves. As many trial lawyers have learned, it can take only one bad document to bring down the house. With respect to the increased use of e-mails as evidence in litigation, companies need to educate their employees on what constitutes appropriate online communication. We recommend that companies focus on training their employees to “think twice and click once.”

Why are e-mails such a major issue? E-mails have become the primary form of communication. Millions of e-mails are exchanged between employees daily. E-mails are considered to be informal. Nevertheless, in one brief, seemingly informal e-mail, an employee can render an opinion on liability, falsely implicate fellow employees in wrongdoing, and make a binding admission – all without the employer even knowing such a “paper trail” exists. When writing e-mails, many employees may not understand that their informal e-mail comments can be twisted and taken out of context.