Business Communications 101: Get Ready for the Deposition
Don't put it in writing if you don't want it dissected by a group of lawyers at a yet-to-be-determined time.
There used to be a saying “Don’t put anything in writing you wouldn’t want splashed on the front page of the New York Times” (this was changed to the Globe for those growing up inside 128.) We need to update the saying, because newspapers are dead and in a post-fact world, the media simply doesn’t hold people to account like they used to.
I think back to my time at a previously esteemed law firm (before they bent the knee to neo-fascism) and I think the most relevant way to think about written communication at work is “Don’t put anything in writing you can’t back up in a deposition while getting grilled by a $2K/hour partner.” The sentiment is the same - written business communications are not private, no matter who you left off the email chain.
Everything is Discoverable
I’m a shit talker - there’s no two ways about it. I’m from a city where profanity is laced in all of our greetings (especially the friendly ones) and Larry Bird and Pedro Martinez were my idols growing up - how can you not have an acerbic wit and a somewhat off-putting way of communicating?
Most of my coworkers don’t see this side of me - it turns out that in client services phrases like “Were you kicked in the head by a donkey as a child?” in response to ridiculous statements isn’t germane to career growth and success. So we call those inside thoughts.
But if we’re close enough coworkers, you will see portions of this come out in an unguarded moment. I am lucky enough to have met many of these types of close friends throughout my career, and it makes the doldrums of the workday less painful.
Which brings me to my (belabored) point: I happened to be chatting to one of these friends on Teams when they said “Let’s switch to text” as I'm sure I went into one of my rants. They were of the opinion it would be harder to track. I’m not super convinced of this.
Legal discovery is a wide-ranging exercise - if you talked about work via text, but it was on a personal device, that could still fall under discovery. So it may not be on Teams or Slack but if it’s related to the litigation you unwittingly find yourself in, you’ll likely find yourself in a windowless room with a bunch of humorless attorneys dissecting your emoji usage.
There’s also the fact that in today’s world, you’re never actually on anything personal. Got an email client downloaded to your phone? There’s a chance you’ve agreed to some severely invasive terms and conditions with your employer. And it goes beyond that. On the office WiFi sending iMessages? In a company-owned or -leased building during traditional working hours? On a conference call at home texting on the side? These could all be considered part of work by a crafty enough attorney for discovery purposes.
Concealment on Steroids
The impetus of this post wasn’t actually me bitching on Teams, but an excellent NYTimes look at Google’s methods of avoiding the very discoverability that has brought down many a powerful person in the past.
If you’ve spent a good amount of time at any large company, you might be familiar with the good old litigation hold. The first time I received one, a quick moment of panic went through me. We’re being sued? I’m being sued? Why is this language so lawer-ly and official?
In reality, litigation holds aren’t a huge deal. It just means don’t delete anything, which is a pretty easy thing directive to follow. If you get the litigation hold and then go into your computer to delete a bunch of messages, you’re gonna have a bad time. Otherwise, just carry on with your day.
If you worked at Google, as the NYTimes pointed out, you had a different approach to all of this. Disappearing messages in chat, policing metaphor usage among employees, and (my personal favorite) copying lawyers on nearly everything to later claim attorney-client privilege.
Of course, none of it worked. Judges can pierce the attorney-client privilege to ensure it actually applied to a situation, and when they did this with Google they allowed tens of thousands of documents to be handed over after it was determined the privilege simply didn’t exist.
So all of that writing employees thought would never see the light of day because someone with an Esq. in their signature was on CC were pretty disappointed when what they put in writing was now seeing the light.
So What’s a Worker to Do?
You might be saying to yourself: Matt, you ignorant slut, I follow the rules and I have nothing to hide. I’m not going to be part of any litigation, so this doesn’t really apply to me. Oh, dear reader, you couldn’t be more wrong.
Individual employees have little control over the legal aspects of their career. They may be working next to someone who is committing fraud and be called in as a witness, in which case all of their communications with that person can be looked at. You can’t control what other people do. Just ask Taylor Swift.
Secondly, if you work in any field that is even tangentially related to intellectual property and/or business secrets and you’re using AI, the chances are non-zero that you will find yourself tangled up in some legal brouhaha by the time you hit retirement age. So buckle up.
Don’t take this as you need to be the most boring person at work and only talk about corporate matters as if a lawyer is looking over your shoulder. How mundane work would get if we all acted like that.
It’s more about being intentional with what you put in writing and recorded communication. Which you should be anyway, as written business comms shouldn’t be full of fluff or anything else that would allow for a gap that a good lawyer could expand in litigation.
So just keep in mind that what you’re typing could very well end up as an exhibit and be brought up during depositions. So if you’re about to rant in a way that you wouldn’t want to have to dissect in a more level-headed moment in a room full of suits, maybe save it for happy hour (if you go.)
Grab Bag Sections
WTF Coldplay Cheaters: It’s the moment that brought a fractured nation together - dunking on two rich married people cheating on each other’s spouses while also having a direct reporting relationship at work. The schadenfreude was high on this one.
I’m not here to wag my finger at their sexual shenanigans; I’m more concerned with the public way in which they were carrying out this affair. Swaying to some mediocre alt rock in public in your hometown of metro-Boston is a near-guaranteed way to get caught having a discreet dalliance.
While being one of the best cities and metro areas in the world, Boston is also a small town - its insularity is one of the main complaints of outsiders who try to live there. When I go out with my father in town, he inevitably runs into someone he knows or who knows someone he knows. And no one has accused Mr. Kane of being an extrovert in any sense of the word - it’s just that the city is that tight.
So the last thing a couple engaged in an affair in the Boston area should be doing is showing anything resembling PDA. This advice is especially prudent for people who have married into one of Boston’s most famous Brahmin families (talk about insular.) The Cabots may only speak to God, but I imagine there could be a divorce lawyer or two in the mix in the near future.
Album of the Week: The moment we’ve all been waiting for is here: Let God Sort Em Out dropped and it was well worth the wait. There are no skips - I repeat, no skips - on this album and the debate in my group chats has been which song is the best.
The Thornton brothers are back with a vengeance and it’s clear from the interviews and the Tiny Desks and the rest of the press they’ve been doing that they haven’t skipped a beat. You see Pusha with a much more comfortable air about him since he’s teamed back up with his older brother. Softness is not the word for a guy like Push, but there’s something akin to it there in an endearing way.
When I was a youth playing baseball, the best days on the mound for me were when I had a couple extra days rest for the arm - you just felt like there was more in the tank. This is how Malice sounds in his bars - there’s no rust or learning curve at all. Just straight fire exuding from the booth. It’s a sight to behold.
So what’s the best track? It’s impossible to say. If you didn’t get emotional with the album opener of “Birds Don’t Sing” you need to talk to your therapist and/or adjust your meds. If “Ace Trumpets” didn’t give you chills, call your HVAC guy. If “Chains and Whips” didn’t make you scared for other rappers’ careers, you didn’t get it.
But I think the dark horse is “So Far Ahead.” The Pharrell hook with the beat switch, the classic coke bars and flow, the double and triple entendres. It’s textbook Clipse.
Other non-sequitor observations: The content on “Whips and Chains” does not seem worth the fight Def Jam put up over it - super soft suits on that one. Tyler’s verse on “P.O.V.” is one of his best. Need more Nas on “Let God Sort Em Out/Chandaliers.” Why did Pharrell mimic Nate Ruess from fun. on “By the Grace of God”? - unsure if it works or not. And the kicker: when’s the next album?
If it hasn’t been in your rotation, give it at least one spin - it’s the best album from a group with an already-distinguished catalog.
Quote of the Week: “We are bound by the law, so that we may be free.” - Cicero
AI Usage in This Post
Other than the cover photo for this post, this is (for better or for worse) raw, uncut thoughts from my human brain.
See you next week!