This document provides guidance on safe communications. It advises assuming that no email or social media is truly private and could be discovered. Staff should be educated to exercise discretion in communications and write defensively to avoid statements that could harm the company. Key databases should be reviewed to understand compliance history. Attorney-client privilege and work product doctrines are explained, noting the requirements and limitations of each. The overall message is to communicate carefully and assume communications could be reviewed publicly.

1. SAFE(R) COMMUNICATIONS
Attorney Client Privilege
Roger Walker JD LLM (Environmental Law)
RAWalker & Associates LLC

2. Current: Environmental Attorney, RAWalker & Associates LLC
Executive Director, REGFORM (20 years off and on)
Adjunct Instr., Environmental Law, St. Louis University (6
years)
Prior: Armstrong Teasdale (13 years)
General Counsel, Missouri Chamber of Commerce (6
years)
Education: LL.M Environmental Law, Lewis & Clark – Portland, OR
J.D., University of Missouri at K.C.
Journalism/Education, University of Missouri at Columbia
ROGER WALKER

3. SAFE(R) COMMUNICATIONS
Communication Goals:
 Communications should be clear and accurate.
 Communications should not hide negative facts
[but] should be written in such a way that it cannot
be misconstrued or taken out of context by those
who would seek to harm you.
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Key Takeaways:
 The way the world communicates has changed
 Assume NO email (or other social media) is private
 Educate staff to exercise discretion
 Write “defensively”
 Avoid “smoking guns”
 Review state and federal databases
 Understanding Attorney Client Privilege and Work-
Product Doctrine

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 The way the world communicates has
changed
 Email (and other social media) plays an essential role
taking the place of in-person meetings and phone calls.
 Formal correspondence maintains a level of caution, but
the standard of decorum is attenuated for digital
communications.
 Environmental Context. In the past, permitting issues
were entirely the province of paper exchange and an
occasional meeting with regulators.
 NGO Activity. Every major permit and rulemaking is
challenged by NGOs; increasing scrutiny of water
discharge permits and waste disposal activities. FOIA
and Sunshine requests are on the rise.

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 Assume NO email (or social media) is private
 Former CIA Director: David Petraeus (enough said).
 Apple legal victory over Sumsung for patent infringement: a
decision (according to interviews with jurors) – based largely
on inarticulate and damaging emails by Sumsung officials
about its competitor Apple. (We need something just like this)
 Arthur Anderson accountants re: Enron collapse. Anderson
e-mail to others on Enron team, “no more shredding” of
Enron-related documents.
 Phen-Fen: Mass. class-action diet drug combination Phen-
Fen. Court allowed e-mail from company executive: "Do I
have to look forward to spending my waning years writing
checks to fat people worried about a silly lung problem?“

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 Assume NO email (or social media) is private
 Chevron: Settled a lawsuit for $2.2 million that involved an
interoffice e-mail giving 25 reasons why beer is better than
women.
 DOD: In reviewing contract with Boeing, DoD emails: “We all
know this is a bailout for Boeing” [and] “We didn‟t need those
aircraft”
 Investment banker: convicted of obstructing federal
investigations into stock offerings at Credit Suisse First Boston.
Banker e-mail telling employees that it was "time to clean up
those files" after he learned of the investigation.
 Zubulake: Wrongful termination. Plaintiff‟s attorney obtained
through discovery an e-mail saying she was too “old and ugly
and she can‟t do the job.”

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 Assume NO email (or social media) is private
 Missouri environmental examples:
 Missouri Agri-business: Odor litigation. Email allowed into
evidence: “MDNR has no idea how to regulate odor”
Defense strategy hinged in part on ability of DNR to regulate
and thus reliance on nuisance common law as unwarranted.
 Missouri remediation firm: Issue regarding selection process
for remediation contractor. Email to DNR sunshined to Post-
Dispatch: “I have better things to do than jump through
hoops for a reporter on a witch hunt.”

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 Educate staff to exercise discretion
 Create formal but short policies and procedures.
 Implement an email destruction policy. Emails should be
retained for the shortest period possible consistent with
statutory/regulatory requirements, business needs, and
legal requirements.
 This policy must be suspended for “custodians” who
have emails relevant to pending, anticipated or
threatened litigation.
 Provide regular training on the appropriate use of email
correspondence, including a deletion policy and litigation
hold.

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 Simple Ideas
 Prevent inadvertent emails by leaving the subject
line blank which forces the system to ask a follow-up
question.
 Do NOT email conversations or meetings about
competitors.
 For any sensitive issue, consider whether or not the
subject of the email would be best conveyed in
person or by telephone.
 For any sensitive legal issue, consider whether or
not the email should be protected by Attorney Client
Privilege.

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 Simple Ideas
 Stop „reflex‟ e-mailing. This is the „texting culture‟
invading the workplace - an environment that demands
better judgment and discretion. Waiting even 10-15
minutes makes a difference.
 Think of every e-mail like a potential trial exhibit. Ask
yourself, if you were on the witness stand, would you like
to be confronted with this?
 Start treating e-mail like paper. Apply the same care and
consideration when you‟re sending an e-mail that you
would if you were sending a letter on your company‟s
letterhead.
 Never put anything in an email that you would not want to
see in a newspaper article (because it may come to that).

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 Write “defensively”
 Clearly set out your rationale for any choices you
make.
 Avoid words that describe legal theories, such as
"hazardous," "foreseeable," "dangerous," “illegal,”
“violation,” “exceedance,” etc. Be factual.
 Avoid overstated expressions, characteristics, or
opinions, such as calling a product problem
"catastrophic" or an environmental release a
“nightmare,” or emissions limits “impossible.”
 Do not overstate perceived shortcomings -- just to
get someone's attention. If follow-up is
needed, follow up in person, then document that you
did.

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 Write “defensively”
 Avoid modifiers like "often" or "frequently" if they are
not necessary. Avoid ambiguity altogether and just
be factual.
 Do not write about things outside your area of
expertise or responsibility.
 Do not discuss product safety or emissions or
remediation efforts in financial terms.
 Do not try to be funny – this includes adding doodles
or comments in the margins.
 If you state a conclusion, give the data or facts that
support it.

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 Write “defensively”
 Do not speculate, guess, conjecture or editorialize.
 Do not play lawyer and raise liability issues.
 Do not blame anybody else in the company or
needlessly refer to internal differences of opinion.
 Do not promiscuously create or distribute documents
beyond the minimum number necessary. This
definitely includes e-mail.
 Always assume your document will be read on
national television during half-time at the Super Bowl
and will remain in the company's file forever.

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 Avoid “smoking guns”
 Stick to company business
 Keep it respectful, courteous, and constructive
 Choose and use communications channels
wisely
 Keep it confidential
 Apply legal literacy
 Contribute positively to the value chain

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 Avoid “smoking guns”
 Strive for clarity and accuracy
 Keep it legal
 Keep it ethical
 Listen and respond to warnings responsibly
 Manage the closure process
 Manage the document retention process
diligently

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 Review EPA databases
 ECHO (Enforcement & Compliance History Online)
 ICR (Information Collection Rule)
 PCS-ISIS (Permit Compliance System)
 FRS (Facility Registration Service)
 AFS (Air Facility System)
 BR (hazwaste biennial report)
 CERCLIS (NPL sites +)
 TRI–Form R (Toxics Release Inventory)

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 Review Missouri DNR databases
 Water Quality Sampling Assessment System
 Proposed and Issued Permits
 Drinking Water Watch
 Exceedance Monitoring System
 Hazwaste database
 UST database
 EMS tracking system

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 Understanding Attorney Client Privilege
 NOT every communication with legal counsel is
privileged
 Elements of Privilege
 Attorney
 Client
 Communication
 Confidentiality anticipated/expected
 Purpose must be to provide legal advice.
 The key concept is purpose. The communication must be
related to the provision of legal advice.

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 Understanding Attorney Client Privilege
 Originated in Roman and canon law: "is the oldest of
the privileges for confidential communications known
to the common law." Upjohn Co. v. U.S., 449 U.S.
383, 389 (1981).
 Purpose is "to encourage full and frank
communications between attorneys and their
clients," and it exists to protect “not only the giving of
professional advice to those who can act on it but
also the giving of information to the lawyer to enable
him to give sound and informed advice." Id. at 389-
91.

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 Understanding Attorney Client
Privilege
 If outside counsel is involved, the confidential
communication is presumed to be a request for and the
provision of “legal advice.”
 Cannot insulate files from discovery simply by sending a
“cc” to the attorneys.
 No non-attorney can create the Attorney Client
Privilege.

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 Understanding Attorney Client
Privilege
 ONLY the client can waive the privilege.
 Waiver can be done inadvertently
 Do NOT overuse “Attorney Client Privilege” or “CC”
attorneys routinely since such language does NOT by
itself create a privilege; attenuates the valid use of
attorney client privilege; and can cause a judge or jury to
make an inference that the company operates with a
“fear” mentality.

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 Understanding Attorney Client Privilege
 Attorney Client Privilege in the digital age.
 Attorney should be in the “TO” field.
 CC: Non lawyers who need to know based on
corporate responsibilities. The privilege only extends
to non-attorneys where it is clear that they are acting
at the direction of legal counsel.
 Restrict circulation to those who “need to know.”
 Consider verbal communications.
 Subject field: “intent is to obtain legal advice.”

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 Understanding “Work-Product Doctrine”
 Work-product doctrine is an independent source of
immunity from discovery, separate and distinct from the
attorney-client privilege." In re Grand Jury, 106 F.R.D.
255, 257 (D.N.R. 1985). [Rules of Court]
 It is "broader than the attorney-client privilege; it protects
materials prepared by the attorney, whether or not
disclosed to the client, and it protects material prepared
by agents for the attorney." In re Grand Jury
Proceedings, 601 F.2d 162, 171 (5th Cir. 1979).
 It protects material prepared by NON-Attorneys as well if
prepared in anticipation of litigation.

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 Understanding “Work-Product Doctrine”
 Litigation need only be contemplated at the time the work is
performed for the doctrine to apply and the term "litigation" is
defined broadly to encompass the defense of administrative
and other investigations.
 Work-Product may include interviews, statements,
memoranda, correspondence, briefs, mental impressions,
personal beliefs, and countless other tangible and materials.
 Compared with Attorney-Client:
 “Factual" work-product may be discoverable upon a showing of
substantial need for the information.
 However, "opinion" work-product -- which reflects counsel's
subjective beliefs, impressions, and strategies regarding a case -- is
nearly absolute.

26. SAFE(R) COMMUNICATIONS
Roger Walker
rwalker@rawalkerassociates.com
573.415.7699
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