Avoiding Document Land Mines
“Land mine” is a term we use for something buried in your company that will blow up if it is uncovered. In court, even an innocuous phrase in a private email from one of your employees, such as, “this will negatively impact the bottom line,” could be a land mine. In a products liability action, a plaintiff’s lawyer could use this statement to undermine the credibility of your organization.
When was the last time you cringed after reading a document written by someone in your organization as you imagined how a prosecutor or plaintiff’s lawyer could use it to imply sinister behavior? Maybe it was just last week or last month. It’s not that your employees don’t care – it’s just that they don’t know.
Every day thousands of documents are saved which because of technology, can be retrieved indefinitely. As we say, documents are like diamonds – they are very precious and they last forever. Many companies have adopted electronic document management systems to get control of the documents and capture communication on the content instead of using email. However, to survive in our litigious society, organizations need to have the right communications culture. Everyone needs to understand what they should, or should not, write in their documents, and how to leverage technology to help enforce company policies and gain better visibility into risk.
Industry leaders like Pfizer, Bayer, Chevron and Eli Lilly have learned the hard way when they were involved in costly lawsuits. The media reported that Wyeth’s reserve for Fen-Phen litigation is $21 billion and Merck’s exposure to Vioxx lawsuits may total as much as $50 billion. During discovery, these companies were forced to produce documents that contained embarrassing, inflammatory statements that contributed to their expensive settlements. In a particularly noteworthy case, Microsoft was subject to the same fate after it came to light from meeting minutes that Bill Gates said, “How much do we have to pay you to screw Netscape?”
All of your employees must know how to write documents that are complete and accurate and do not create land mines, and how to better manage those critical assets.
Nancy Singer, ex-attorney for DOJ, currently trains FDA inspectors on “Avoiding Document Land Mines.”
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