Roger Walker, REGFORM, Safe(r) Communications, Missouri Water Seminar, September 10-11, 2015, Columbia, MO

REGFORM WATER CONFERENCE

COLUMBIA, MISSOURI SEPTEMBER 10-11, 2015

SAFE(R) COMMUNICATIONS

Roger Walker

Executive Director, REGFORM

Roger Walker JD LLM (Environmental Law)

Principal, RAWalker & Associates LLC

Current: Environmental Attorney, RAWalker & Associates LLC

Executive Director, REGFORM (20+ years)

Adjunct Instr., Environmental Law, St. Louis University (8 years)

Prior: Armstrong Teasdale (13 years)

General Counsel, Missouri Chamber of Commerce (6 years)

Education: LL.M Environmental Law, Lewis & Clark – Portland, OR

J.D., University of Missouri at K.C.

Journalism/Education, University of Missouri at Columbia

ROGER WALKER


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Key Takeaways:

The way the world communicates has changed

Educate staff to exercise discretion, write

“defensively” and avoid “smoking guns”

Understand the legal tools to protect sensitive

business information


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The way the world communicates has changed

Email (and other social media) plays an essential

role taking the place of in-person meetings and

phone calls.

NGO Activity. Every major permit and rulemaking is

challenged by NGOs; increasing scrutiny of water

discharge permits and waste disposal activities.


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Assume NO email (or social media) is private Former CIA Director: David Petraeus (enough said).

Hillary Clinton: National Security

Arthur Anderson accountants re: Enron collapse. Anderson e-

mail to others on Enron team, “no more shredding” of Enron-

related documents.

Phen-Fen: Mass. class-action diet drug combination Phen-Fen.

Court allowed e-mail from company executive: "Do I have to look

forward to spending my waning years writing checks to fat

people worried about a silly lung problem?“


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Assume NO email (or social media) is private Chevron: Settled a lawsuit for $2.2 million that involved an

interoffice e-mail giving 25 reasons why beer is better than

women.

Investment banker: First Boston banker e-mail telling

employees that it was "time to clean up those files" after he

learned of the investigation.

Zubulake: Wrongful termination. Plaintiff’s attorney obtained

through discovery an e-mail saying she was too “old and ugly

and she can’t do the job.”


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Assume NO email (or social media) is private "Obviously looking to fire this person. She is 6 months pregnant, too."


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Assume NO email (or social media) is private

“Per Sr Mgmt request, these data should not see the

light of day to anyone outside of GSK”


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Educate staff to exercise discretion

Implement an email destruction policy consistent

with statutory/regulatory requirements, business

needs, and legal requirements.

Provide regular training on the appropriate use of

email correspondence, including a deletion policy

and litigation hold.


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How long does your company retain

corporate emails before deleting them?

* Answer Vote Percent

* Less than 6 months -- 19.3%

* 6-12 months -- 14.0%

* 13-18 months -- 7.0%

* 2 years -- 7.0%

* Do not delete -- 45.6%

* Other -- 7.0%


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Simple Ideas (part 1)

Prevent inadvertent emails by leaving the subject

line blank which forces the system to ask a follow-

up question.

For any sensitive issue, consider whether or not the

subject of the email would be best conveyed in

person or by telephone.


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Use the darn phone!


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Simple Ideas (part 2)

Stop ‘reflex’ e-mailing. Wait even 10-15 minutes.

Start treating e-mail like a letter on your company’s

stationery.


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Write “defensively” (part 1)

Avoid words that describe legal theories, such as "hazardous," "foreseeable," "dangerous," “illegal,” “violation,” “exceedance,” etc.

Avoid overstated expressions such as calling a product problem "catastrophic" or an environmental release a “nightmare,” or emissions limits “impossible.”

Do not overstate perceived shortcomings -- to get your bosses attention.


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Educate staff to exercise discretion …


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Educate staff to exercise discretion …


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Avoid ambiguity. Stick to facts.

Do not write about things outside your area of expertise or

responsibility.

Do not guess how much emissions or remediation efforts

will cost.

Do not try to be funny – this includes adding doodles or

comments in the margins.


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Do not speculate or play lawyer.

Do not blame anybody else in the company or refer to

internal differences of opinion.

Always assume your document will be read on national

television during half-time at the Super Bowl and will remain

in the company's file forever.


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Titanic as an example – Conventional Wisdom

Lookouts not on duty or asleep

Poor design or construction

Going too fast at night

Captain drunk

Obama’s fault


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Titanic as an example – New Theory

Rare Oceanic Mirage. Titanic was sailing from

warmer Gulf Stream waters into the frigid Labrador

Current, where the air column was cooling from the

bottom up, creating a thermal inversion.

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Legal Tools to Protect Business Information

Attorney-Client Privilege

Elements of Privilege

Attorney

Client

Communication

Confidentiality anticipated/expected

Purpose must be to provide legal advice.

The key concept is purpose. The communication must be related

to the provision of legal advice.


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Attorney-Client Privilege

If outside counsel is involved, the confidential

communication is presumed to be a request for and the

provision of “legal advice.”

Cannot insulate files from discovery simply by sending a

“cc” to the attorneys.

No non-attorney can create the Attorney-Client Privilege.


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Attorney-Client Privilege in the digital age.

Attorney should be in the “TO” field.

CC: Non lawyers on “need to know basis” The privilege

only extends to non-attorneys where it is clear that they

are acting at the direction of legal counsel.

Consider verbal communications.


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Use the darn phone!


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“Work-Product Doctrine”

Independent source of immunity from discovery, separate

and distinct from the attorney-client privilege.”

Broader since it protects materials prepared by the attorney,

whether or not disclosed to the client, and it protects

material prepared by agents for the attorney.

Protects material prepared by NON-Attorneys if prepared in

anticipation of litigation.


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Work-Product Doctrine

Litigation need only be contemplated at the time the work is performed.

Work-Product may include interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, etc.

Compared with Attorney-Client:

“Factual" work-product may be discoverable upon a showing of substantial need for the information.

“Opinion" work-product -- which reflects counsel's subjective beliefs, impressions, and strategies regarding a case -- is nearly absolute.


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Confidential Business Information

Information such as trade secrets, processes,

operations, style of works, or apparatus, or to the

production, sales, shipments, purchases, transfers,

identification of customers, inventories, or amount or

source of any income, profits, losses.

EPA and States have well-established processes to

establish this protection.

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REGFORM WATER CONFERENCE

COLUMBIA, MISSOURI SEPTEMBER 10-11, 2015


Roger Walker

Executive Director, REGFORM

Roger Walker JD LLM (Environmental Law)

Principal, RAWalker & Associates LLC