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Public Policy

Think Before You Write

By Ashley G. Moss, Attorney, Vandeventer Black LLP

In the not-so-distant past, all written communications were typed on letterhead, reviewed several times for accuracy, and signed with ink. As technology has evolved, letters have been largely replaced by emails, texts, and the like, reserving their archaic predecessor for special, more formal, occasions. These new electronic mechanisms allow communications to be exchanged nearly instantaneously, without requiring time for printing, signing, and stamps. This has simplified the exchange of information in the construction and design industries, but it also has its drawbacks.

A person writing a letter has a hard document staring back at him to which he attests to its accuracy by transcribing his unique signature in ink. Electronic communications, on the other hand, require only seconds to draft and “disappear” with a click. Because of this, electronic communications are more susceptible to receiving “seat-of-the-pants” responses without careful deliberations. Moreover, particularly within businesses, email has practically replaced conversations “around the water cooler” and results in a transcribed record of the off-hand comments exchanged between employees.

Regardless of the format, all written communications, paper and electronic, are equally as permanent and are not treated any differently by the law because of their format. When parties exchange records during litigation, they exchange not only letters, contracts, and printed documents, but also emails, texts, and even posts from social media, when relevant. This includes even communications exchanged within a business and can span as far as your “deleted” email folder. The lesson: Do not put anything in writing – email, text, or otherwise – if you would not want it read by a client, judge, or jury.