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10 Email Tips to Reduce Litigation Risks and Costs

By Zach Glaser

Once the threat of litigation occurs it is too late to start streamlining your email management procedures and deleting bad emails. Here are a few tips every business should put into practice prior to litigation that will decrease litigation risks and costs in the future:

  1. Treat Your Emails Like Your Paper Files: For hundreds of years, businesses have managed paper files in filing cabinets in ways that reduced the proliferation of redundant documents and made it easy to find documents relating to particular matters. When it comes to emails, however, people often forget these simple principles. Create matter files and subfolders in your document management system and delete redundant and irrelevant emails.
  2. File your Emails Regularly: One never knows when litigation will be threatened or commenced. Get your emails out of the inbox and file them regularly (read: no less than weekly).
  3. The Single Matter Theory: Draft separate emails for distinct matters so they can be filed (and retrieved) easily. Email summaries or updates regarding multiple matters are often misfiled, which can force the document search to be expanded beyond the subject matter files at issue.
  4. Remember the Re: Line: Documents are typically filed and reviewed with the assumption that the text of the email matches the “Re:” line. Avoid changing subjects in an email chain.
  5. Avoid Email Chains: Long email chains will exponentially increase the volume of materials to be reviewed and produced, thereby increasing litigation costs. Email chains should be avoided where possible.
  6. Avoid Forwarding Attachments: Nothing clogs up an email system faster than having large email attachments forwarded around the office. Only forward attachments if necessary, and only to whom it is necessary.
  7. Emails Are Forever: Even deleted emails can be recovered, and once litigation commences, emails must not be deleted. Before clicking “send,” imagine having to explain why you wrote your email while it is displayed on an overhead projector in front of a jury. Avoid colorful language, disparaging remarks and anything else you wouldn’t want your mother to read.
  8. Protect the Privilege: One of the most time-consuming tasks in reviewing emails for production relates to privileged communications. When corresponding with counsel, always use the phrase “PRIVILEGED ATTORNEY-CLIENT COMMUNICATION” in the Re: Line.
  9. Protect the Privilege, Part II: Be mindful of forwarding privileged communications to anyone in order to avoid a potential waiver of the attorney-client privilege. Before you hit that “forward” button, consult counsel.
  10. Pick up the Phone: Some subjects are inappropriate for email. If you have a concern about an issue that may give rise to liability, whether personal or for the company or both, it may be smart to pick up the phone.

For more information on this issue or other potential litigation matters contact Zach Glaser at 267.443.4117 or via email at zglaser@kleinbard.com.