Last month Arvin Maskin, co-head of Weil’s Product Liability/Mass Tort practice, moderated a seminar for the ABA section of litigation addressing how to avoid creating harmful internal documents. The seminar was geared to helping in-house counsel (and those advising them) better understand the perils that often come with improvidently created email and other internal documents and suggest solutions for not only addressing those perils but avoiding them in the first place, lest the document become “Exhibit A” in a plaintiff’s case. A copy of Arvin’s article presented at the seminar is attached here.
We’ve all had cases where the existence of an unfortunate internal document had to be explained to the trier of fact–either to explain why it wasn’t really that bad or to explain why that one bad document wasn’t particularly relevant to the overall case. Because it’s generally not a good thing to have to do a lot of “explaining” at trial or in court papers, the better practice is to try to avoid the creation of harmful documents from the outset.
Arvin’s article explores “both the advantages and challenges of instituting a companywide document discipline program, and offer[s] some practical suggestions for ways in which in-house counsel can structure and implement employee education programs that foster document discipline and risk avoidance.” We thought it would be of interest to our readers.