Discretion and Compliance

Martin Lomasney

Martin Lomasney

Martin Lomasney created a famous saying on the importance of discretion:

“Never write if you can speak; never speak if you can nod; never nod if you can wink.”

At the time of Lomasney, it was not email but telegrams that were the principal method of electronic communication. But those telegrams just ended up on pieces of paper.

This was also the time before e-discovery. Now every email is subject to ending up in a lawyer’s hand during a law suit.

Think before you hit that send button. Maybe a phone conversation will be better. Or a nod.

5 Responses to Discretion and Compliance

  1. Jason Mark Anderman July 9, 2009 at 1:12 pm #

    This point is also well taken when thinking about the tremendous productivity drain resulting from email. With the advent of word processing, people envisioned paperless offices. Instead, word processing has been abused to produce more paper documents than anyone had dreamed of decades ago. Email operates similarly. The convenience of near instantaneous correspondence drives people to send enormously greater volumes of messages, including “for your information” emails, requests without any context, demands without a signature line, and many vague, ambiguous and rambling remarks. Not only does this behavior create a litany of evidence that can be used to paint an unflattering (and inaccurate) picture of a defendant, but the time spent deciphering all of these messages, as well the additional back and forth correspondence caused by doing so, takes many hours away from each business day. A good guideline to follow with email is to use it mainly as an information extraction technique: define a goal as to what exact information you need from the recipient, clearly state the question, and send it. Otherwise, don’t.

    • Doug Cornelius July 9, 2009 at 2:24 pm #

      Jason –

      Like you, I am not a fan of email. Our inboxes have turned into a place where a tremendous amount of information lies, but it may not be the most current or the best information. Acting on wrong information can lead to compliance failures.

      • Jason Mark Anderman July 9, 2009 at 3:46 pm #

        Your point makes me think about the massive cost of electronic discovery due to email. Many clients I’ve worked with over the years imposed sharp limits on the storage size of their employees’ email accounts residing on the shared server. Because employees are so addicted to generating voluminous amounts of email, IT departments allow them to archive their email on their hard drive to get around the size limits. In a large, multinational company, with tens of thousands of employees, that means tens of thousands of hard drives would need to be searched and scoured to fully comply with an e-discovery request. The size and cost of such an effort (a completely preventable effort, no less), is mind boggling.


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