Electronic Communication – A Blessing or a Curse?Print this article
Co-authored By Mark Jackson and Erin Johnson, JCJ Insurance Agency
With advances in technology, methods of communication for design firms are quickly evolving. What would have been detailed in a formal letter, transmittal or submittal in the past is now frequently conveyed in an informal, hastily written email. Today, the overwhelming majority of our business is conducted by electronic communication. Electronic communication occurs in many forms, including emails, text messages, and voicemails.
Email has become the most common way of exchanging information for design firms. It is not unreasonable to think that text messaging will soon be equally prevalent. While emails and texts are convenient, firms need to treat them like other formal means of communication.
Emails and texts are fast and effective, which is a benefit in today’s face-paced environment. Not only are you able to communicate quickly but you can also include numerous individuals in the messages. With the use of mobile devices, correspondence is often casual and, if you respond while waiting for an appointment or at a jobsite, can be carelessly written. It is crucial that everyone on your team understands that in a court of law, electronic communications are legal, permanent, and discoverable. A disclaimer that “this was sent from my iPhone” does not make the document less valid. One poorly drafted email or text can have a very negative effect on the defense of a firm should a dispute arise on a project.
When drafting an email, take time to consider what you want to communicate. An email should be no different than a formal letter in regards to the content. Before sending an email, ask yourself if you would put these exact words on the firm’s letterhead with your signature. If you hesitate, reconsider what you write. Your emails need to be prepared and suitable for presentation in any forum. An offensively written email or admission of fault can pose significant risk to the firm in the event of a dispute.
A firm’s ability to defend itself for a professional liability claim is weakened when, during discovery, there are emails that are unprofessional, disrespectful, insulting, or contain an admission of fault. Emails should never include negative comments about the owner, contractor, or other members of the design team. Any email that disparages other members of the design team can be used to build a case that your firm was not acting within a reasonable Standard of Care. Again, the question that should be asked before hitting the send button… “Would I be willing to put this content on the firm letterhead with my signature?” This applies to both emails that are sent internally to members of your team and emails sent to other parties. You should never write anything in an email that you would not want forwarded to your boss, spouse, parent, or read in front of a jury.
A text message carries the same weight as any other type of written communication. They can be just as damaging if they are unprofessional or contain an admission of fault. Likewise, they can help firms in the defense of a claim if they provide proof of a client’s instruction or opinion. Since text messaging is a relatively new way for firms to communicate and it is not as recoverable as email, it is important to develop a policy on the use of text messaging and a policy for retention.
Text messages are often kept on an employee’s phone. This poses a challenge to the firm to have access to this type of electronic communication. What happens if a client responds via text message for a change of material? How do you make sure this request is documented in your project file? Firms will be at the mercy of the employee’s phone carrier to try and recover old text messages. Each phone company has a different policy; however, most records from the phone company often only show the sent messages, not the ones that are received.
One solution is to limit text messaging to only incidental communications such as confirming appointments and meeting times. If you do use text messaging regarding project issues, have a procedure in place to capture this correspondence. Most texts can be forwarded via email and then saved in the project file. If you can not forward the text message, a best practice should be to follow up with an email confirmation.
Most modern phone systems have the capability to send to the recipient via email the recorded voice message. When you delete these voice messages from the phone or your inbox, is it really gone? Most systems keep an electronic copy of the message, which can be good… or bad. It can be very beneficial to the firm to preserve a voice message from a project owner or contractor if they are confirming changes to a project, but it can also be very damaging if someone at your firm leaves an offensive voicemail.
As with any other type of electronic communication, care needs to be taken in the words said and recorded so as not to be able to be used against the firm at a later date. Employees need to use the same best practices mentioned earlier when leaving a voice message, whether internally or externally.
Electronic communications are discoverable. In the event of a claim, the plaintiff’s lawyers often request all documents and electronically stored information that pertains to the project. Similar to the recent changes with the Federal Rules, Florida Rules of Civil Procedure were also significantly amended to address the discovery of electronically stored information. Electronically stored information (ESI) includes emails (both internal and external emails), photos, text messages, and voice messages that are captured via email. Firms need to develop a retention policy for these documents. They need to be properly identified and stored in the project file for future reference.
Electronic communication will continue to be used more frequently in our day-to-day business activities. Therefore, it is important to create best practices and train every employee. Create a policy to ensure that these electronic communication tools are a blessing, not a curse.