Event Recap – What's On File Could Be On Trial: Mastering Document Risk Part II

In Part II of Gardner Law’s documentation risk series, titled “The Files Strike Back: When Bad Documentation Undermines Good Companies,” Senior Counsel David Graham delved into the human side of documentation—and how individual behaviors and internal communications can significantly impact a company’s legal exposure.

Building on Part I’s discussion of legal frameworks such as privilege, confidentiality, and spoliation, this session shifted focus to day-to-day habits, decision-making under pressure, and how even well-meaning employees can create documents that damage corporate integrity in court.

The Stakes of Casual Communication

Graham, a veteran litigator with deep experience defending companies in the food, drug, and medical device sectors, opened the session by reminding attendees: documentation isn’t just about compliance—it’s conduct. And it will be interpreted as such.

“When you get to trial, the attorneys are going to make whatever you have in documents sound like the attitude or the values of the firm that they’re drawing a case against. So, the writing is not just a recording—it reflects what the company thinks and has done.”

Emails, memos, texts, and meeting notes that are written hastily, emotionally, or sarcastically can—and often do—surface in litigation. Graham shared real-life cautionary tales from his case files:

• The “Jailhouse Memo” featured a hand-drawn picture of an employee behind bars with the caption “this is where we’re all going to end up,” written in jest about a quality issue.
• The “Hangman’s Noose Memo” included a sketch tied to concerns about an upcoming FDA inspection.
• The “Disaster of Epic Proportions” Memo exaggerated compliance concerns without full knowledge of the corrective efforts already underway.

These documents, Graham noted, may have seemed trivial—or even humorous—to their authors, but in court, they were weaponized to question the company’s culture and credibility.

Rules of the Road

Graham outlined key rules for avoiding “bad documents”:

• Don’t write when you’re angry—follow the 48-hour rule.
• Don’t draw conclusions when you don’t have all the facts.
• Use precise, neutral language—avoid words like “defective,” “unethical,” or “injury” unless their use is warranted and backed by evidence.
• Assume everything you write could be read in court.
• And most importantly, don’t put safety in monetary terms.

“If we have a document where someone says, ‘We can’t do that because it costs too much,’ and it’s not put into proper context, then it makes the hill a lot higher to climb when defending the product and telling the company’s story.”

How Gardner Law Can Help

If your organization hasn’t recently reviewed or reinforced its documentation policies, now is the time. Train your teams. Set clear standards. And treat document creation as a strategic legal risk—not an afterthought.

If you’d like help evaluating your company’s documentation culture, or if you’ve uncovered records that give you pause, reach out to David Graham at dgraham@gardner.law