Today most major newspapers have headlines regarding the President’s son and his email exchange with a British tabloid journalist, arranging a meeting with a Kremlin connected attorney from Russia.
Yes, it sounds like a soap opera – but I truly don’t care about the content or context of the emails (well, at least not for the purpose of this discussion). What I care about is the following: THE EMAILS TELL THE STORY.
We exist in a world where email communication is dominant in our personal and professional lives. One could read an email or text exchange between my husband and I and assume we only communicate about the kid, pets, household management, and ridiculous family stuff. Does that totally define and encapsulate the whole of our relationship? Let’s hope not. Is it the only way we communicate? Thankfully no.
But if someone asked me to explain what we discussed the week of July 12, 2017 two years from now, I would have no specific recollection of our oral communications, jokes, problems or dinner conversations. I likely could access the texts, photos or emails shared from the week, which would mean, in two years, a very rich, complicated and normal week of marital communications would be defined by a few written lines. In a sense, the email would dominate and tell the story.
In two years, the only information available about the week would be how his flight went and what time our daughter fell asleep.
And why I am boring you about marital communications and Donald Trump Jr. in a business litigation article?
It should be fairly obvious – but then again, it may not be.
In my world, in a world of demands, allegations, lawsuits, breach of contract claims etc – it is easier to define a narrative by what is written, solid, in black and white and easily reproducible than it is toe define a narrative as nuanced and complicated.
I represent employees (often ex-employees) in business disputes.
Lawyer for company asks my client in deposition:
BIG BAD ATTORNEY: Why did you leave the company?
INNOCENT CLIENT: Because I wanted to start my own business and be my own boss.
BIG BAD ATTORNEY: But that isn’t what you told my client in your resignation email is it? You told him your Mother was sick and you needed to take time away from work? So which is it you lying sack of….. “
INNOCENT CLIENT: I don’t recall what I wrote in the email – but both were true, my Mom was sick.
BIG BAD ATTORNEY: I’d like to show you what Ive marked Exhibit 1,115 – An email from you dated August 1, 2017 to Frank stating “I am leaving because my mother is sick and I need to take time off.”
INNOCENT CLIENT: Yes, I see that. But it wasn’t the whole story. It was more complicated than that.
So you get where I am going. Despite the fact that no situation is as black and white as an email or text – in court, reality is reduced to sound bites and snap shots.
Breach of fiduciary duty of loyalty case (essentially alleging harmed ex-employer’s business by soliciting clients before you left his employment)
MEAN COMPANY LAWYER: Did you solicit Company’s clients to leave the company while you were still an employee?
DUMB EX-EMPLOYEE: I did not.
MEAN COMPANY LAWYER: When did you resign and what was your last day at work?
DUMB EX-EMPLOYEE: I gave my notice July 1, 2017 and left August 1, 2017.
MEAN COMPANY LAWYER: Did you text any clients during that time frame?
DUMB EX-EMPLOYEE: I may have but only to tell them I was leaving.
MEAN COMPANY LAWYER: Did you not send this text, marked as mean company’s exhibit 5000 to their best client on July 2, 2017 – which stated: “Hey, cancel that order you placed last week. I am starting my own company in three weeks and can save you a ton of money. Ha. Suckers. I’ll show them for not promoting me! Beers on Friday?”
DUMB EX-EMPLOYEE: Ugh. Well. I don’t recall sending that text.
Again. This client may have been the best man in your wedding. He may have already known you were starting your own business and planned on being your best client, but the text message creates a lovely scenario where employer now gets to sue you for violating Virginia law.
So the moral of the story is this – the emails, the texts, tell the story, even if it’s an incomplete one. And they often come back to haunt you months, weeks, years later. So be careful. Be smart. You can try to explain your way out of an email months later on Fox News, or under oath in a deposition – but it sure would be better if you don’t have to.