I’ve represented more than one company through a complex, high profile federal lawsuit. Nothing is more humiliating for a company than seeing their emails, text messages, and documents posted by opposing counsel on a huge screen in the courtroom for all to read. Ouch.
There is no way to legally avoid discovery – you can’t destroy records once a suit is filed. But you CAN avoid typing dumb and embarrassing stuff in the first place! Our litigation counsel drilled one message into us “Never type anything you wouldn’t want to see on the front page of The New York Times.”
Unfortunately, most companies only receive and heed that advice after a lawsuit is filed, not before.
With the Justice Department putting the tech industry on notice that a big antitrust review is beginning, it’s time for everyone who works at those companies to double down on discretion.
Don’t type anything you wouldn’t want to see on the front page of The New York Times, people! Better yet, don’t do anything you wouldn’t want there either!
An antitrust investigation is broad and deep by definition. PR and marketing functions at these companies are big targets – what the company does and doesn’t say externally becomes a huge issue in these suits. If you work in comms, if you’re a spokesperson, expect to be scrutinized. A lot.
One upside of the embarrassing transparency of litigation is that it happens to your opponents and competitors too – their humiliating emails may well be worse than yours. No one comes away unscathed.
Another great benefit is that companies who survive it are forever changed. For the better.
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