Parents are smarter than lawyers when it comes to e-discovery, because moms and dads focus on front-end behavior, rather than back-end damage control. I realized this after a long day of working with a witness and dealing with typical discovery issues, when my wife mentioned the importance of teaching our kids that everything they do online lives forever.
Most lawyers know that prevention is cheaper than repair. So, why do attorneys spend so much time and money fixing problems after clients’ employees engage in unprofessional online behavior, without imploring them to focus on reducing risk?
Let’s be realistic: Employers can’t stop employees from using internet functions for personal and professional reasons at work any more than parents can stop their children from texting, using Facebook, chatting online, or posting on Pinterest and Instagram. But companies can curtail litigation and improve profitability by prioritizing the proper handling of electronic communications. That means establishing commonsense rules for workers’ online communications, regularly monitoring compliance and rewarding appropriate behavior.
Some clients may view this as a waste of time or a distraction from accomplishing the business’ core mission. But mandating professional online behavior at work will lead to more productive employees and a more profitable business, just like teaching a child to use care in online communications will create lasting habits and help that child become a more responsible adult.
If the idea of one small organizational change leading to significantly higher profits sounds fanciful, consider the case of Alcoa. In his book "The Power of Habit: Why We Do What We Do in Life and Business," author Charles Duhigg describes how Alcoa’s then-CEO Paul O’Neill, taking over a declining company, improved Alcoa’s overall fortunes by focusing exclusively on mandating changes to workplace safety.
Inadequate safety policies and procedures at Alcoa had led to injuries and a failing business. But by simply mandating a zero tolerance policy on workplace injuries, Alcoa’s entire organizational habits changed so dramatically and fundamentally that not only did it become a safe place to work, but the business’s profitability soared.
Unprofessional workplace electronic habits are the modern-day equivalent of workplace injuries. They lead to costs that go far beyond the dollars paid to lawyers and e-discovery vendors to assist after the client reasonably anticipates litigation. Learning from Alcoa’s example, today’s companies need a zero tolerance policy on bad workplace communications.
Lackadaisical control of the way individuals communicate suggests a company with inadequate institutional control, unfocused and unprofessional employees, and poor time management. The resulting costs may seem like a minor leak at first, but, little by little, they become a deluge of losses. Clients who remain unconvinced may benefit from an attorney who outlines the ordeal and associated costs of a document hold, preservation, collection, review, production and defense of electronic documents.
Changing the way employees communicate is a daunting task, as is getting kids to listen to parents’ advice. But it is a necessary task, and it is doable. The conventional wisdom — simply restricting employees’ use of electronic devices or blocking certain troublesome websites — is archaic and impossible to enforce. Policies that try to control how and for how long documents and e-mails are stored also are likely to fail, due to the intersection of work and personal devices (tablets, smart phones, etc.) and cloud computing.
So, what should a company do to protect itself from employees’ inappropriate electronic communications that lead to potential liability down the road? It’s the same education my wife is talking about with our kids. Changing behaviors in the workplace and in middle schools requires educating first, monitoring compliance consistently and rewarding later.
Employers can teach employees how to draft factual e-mails without baseless editorializing or unnecessary personal messages. As this professional and careful method of communication becomes the dominant manner of written communication, it ultimately will become the organization’s culture.
Undertaking periodic spot checks of e-mails for compliance will ensure that employees become accustomed to avoiding using e-mail merely to gossip or vent. Providing rewards for appropriate e-mail use further will encourage the right behavior. Ultimately, these improvements will make handling such documents (including predictive coding and technology assisted review) much easier and less costly, should litigation arise.
Yes, these are cost-conscious times. A properly designed program to institute these fundamental changes organizationwide will not be cheap. But it should be the first step in designing an effective e-discovery program. Forward-thinking companies will understand the long-term benefits and ultimately will decide to train employees to communicate with care. This will create a domino effect of professionalism that will improve all other areas of the company, leading to overall increases in profitability. Just ask Alcoa or, better yet, ask mom and dad.
Jeff Lilly is a partner in Gordon & Rees in Austin and co-chairs the firm’s e-discovery group. He defends corporate witnesses in mass tort litigation and an attendee of Sedona’s 7th Annual Staying Ahead of the e-Discovery Curve Conference.