What's on File Could Be on Trial: Mastering Document Risk

Every document your employees create—emails, text messages, meeting notes, voicemails—has the potential to become critical evidence in litigation. In today’s legal environment, even casual communications can expose your company to reputational harm and costly liability.

Litigation doesn't discriminate by industry. Regardless of sector, routine workplace documentation is often discoverable—and when taken out of context, it can be used to paint a damaging picture of your organization.

The good news? With the right practices and training, companies can reduce risk and transform documentation from a liability into a strategic asset. David Graham will be leading a complimentary two-part webinar on May 6 and May 13 full of practical advice designed to enable your entire business to say the right thing the right way through effective documentation.

When Documentation Becomes Dangerous

Employees often underestimate the legal weight of their everyday communications. They may assume messages are private, that disclaimers offer protection, or that informal language doesn’t matter. In reality, courts routinely require production of work-related messages—even if they’re on personal devices.

In litigation, tone and context often get lost. Casual phrases like “we messed up,” sarcastic comments, or speculative language can be interpreted as admissions of guilt or negligence. Common pitfalls include:

• Red flag terms like “defective,” “malfunction,” or “liability”
• Casual or sarcastic tone, which may come across as dismissive or cynical
• Over-sharing or speculation beyond the purpose of a document
• Improper assumptions about confidentiality or privilege
• Emotionally charged writing, especially in moments of frustration
• Using personal devices under the belief they’re beyond discovery

Cautionary Tales: Big Tobacco, BP, and Theranos

Few examples illustrate these dangers more clearly than the tobacco industry’s litigation history.

For decades, tobacco companies successfully defended themselves by withholding internal records. But in the late 1980s, just a few internal documents came to light—emails and memos showing executives knew about the dangers of nicotine and had intentionally downplayed them.

The result? Massive reputational damage and the largest civil litigation settlement in U.S. history: the 1998 Master Settlement Agreement, which cost the tobacco industry over $200 billion.

This case demonstrates how “routine” documentation can become an existential threat.

But a lack of documentation can be just as damaging. In other high-profile cases, companies have struggled to defend themselves not because of incriminating records—but because they lacked clear, factual documentation that could have explained or justified their decisions.

In the aftermath of the BP Deepwater Horizon disaster, for instance, investigators cited gaps in safety documentation and internal reviews as a barrier to understanding whether the company had reasonably assessed known risks. And in the infamous Theranos fraud trial, the absence of records supporting the accuracy of its blood-testing technology left jurors with little choice but to believe the worst.

Best Practices for Smarter Documentation

The solution isn’t to avoid documentation—it’s to do it right. “Smart” documentation is clear, concise, factual, and professional. Key strategies include:

• Assume all communications are discoverable—regardless of platform or device.
• Avoid humor, sarcasm, or speculative language in business communications.
• Eliminate “red flag” words unless they are necessary and used with precision.
• Don’t write while angry or respond hastily to frustrating situations.
• Separate facts from opinions, and avoid unsupported conclusions.
• Document critical meetings and decisions consistently and clearly.
• Limit communication to necessary recipients and relevant content.
• Train employees not to rely on disclaimers for confidentiality.
• Discourage using personal devices for work-related communication.

These practices help ensure internal communications reinforce—not undermine—your legal position.

Hear from an Expert: Join Our Webinar

David has spent decades defending companies in high-stakes litigation—and has seen how poor documentation can derail even the strongest cases.

"Organizations often don’t realize the extent to which careless wording or casual commentary can sabotage their defenses," Graham notes. "When your communications are dissected by opposing counsel, poorly chosen words become expensive liabilities. Investing in training and clear guidelines on document management pays significant dividends by being able to properly present your company’s story."

While litigation risk can never be fully eliminated, companies that proactively manage their documentation practices can significantly reduce their exposure and protect their reputation and bottom line. Ensuring employees are educated, disciplined, and mindful in creating documents is critical to safeguarding your business. 

For those seeking deeper insights and practical strategies for implementing these best practices, Gardner Law attorney David Graham will host an upcoming webinar, "What's on File Could Be on Trial," offering further guidance drawn from his extensive courtroom experience.

📅 May 6 and May 13
🕛 12:00 – 1:00 PM CDT
💻 Virtual | Complimentary