Missouri Water Seminar, September 10-11, 2015, Columbia, MO

1. REGFORM WATER CONFERENCE
COLUMBIA, MISSOURI
SEPTEMBER 10-11, 2015
SAFE(R) COMMUNICATIONS
Roger Walker
Executive Director, REGFORM
Roger Walker JD LLM (Environmental Law)
Principal, RAWalker & Associates LLC

2. Current: Environmental Attorney, RAWalker & Associates LLC
Executive Director, REGFORM (20+ years)
Adjunct Instr., Environmental Law, St. Louis University (8 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

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Key Takeaways:
 The way the world communicates has changed
 Educate staff to exercise discretion, write
“defensively” and avoid “smoking guns”
 Understand the legal tools to protect sensitive
business information

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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.
 NGO Activity. Every major permit and rulemaking is
challenged by NGOs; increasing scrutiny of water
discharge permits and waste disposal activities.

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 Assume NO email (or social media) is private
 Former CIA Director: David Petraeus (enough said).
 Hillary Clinton: National Security
 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.
 Investment banker: 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
"Obviously looking to fire this person. She is 6 months pregnant, too."

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 Assume NO email (or social media) is private
“Per Sr Mgmt request, these data should not see the
light of day to anyone outside of GSK”

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 Educate staff to exercise discretion
 Implement an email destruction policy consistent
with statutory/regulatory requirements, business
needs, and legal requirements.
 Provide regular training on the appropriate use of
email correspondence, including a deletion policy
and litigation hold.

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How long does your company retain
corporate emails before deleting them?
* Answer Vote Percent
* Less than 6 months -- 19.3%
* 6-12 months -- 14.0%
* 13-18 months -- 7.0%
* 2 years -- 7.0%
* Do not delete -- 45.6%
* Other -- 7.0%

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 Simple Ideas (part 1)
 Prevent inadvertent emails by leaving the subject
line blank which forces the system to ask a follow-
up question.
 For any sensitive issue, consider whether or not the
subject of the email would be best conveyed in
person or by telephone.

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 Use the darn phone!

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 Simple Ideas (part 2)
 Stop ‘reflex’ e-mailing. Wait even 10-15 minutes.
 Start treating e-mail like a letter on your company’s
stationery.

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 Write “defensively” (part 1)
 Avoid words that describe legal theories, such as
"hazardous," "foreseeable," "dangerous," “illegal,”
“violation,” “exceedance,” etc.
 Avoid overstated expressions such as calling a product
problem "catastrophic" or an environmental release a
“nightmare,” or emissions limits “impossible.”
 Do not overstate perceived shortcomings -- to get your
bosses attention.

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 Educate staff to exercise discretion …

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 Educate staff to exercise discretion …

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 Write “defensively” (part 2)
 Avoid ambiguity. Stick to facts.
 Do not write about things outside your area of expertise or
responsibility.
 Do not guess how much emissions or remediation efforts
will cost.
 Do not try to be funny – this includes adding doodles or
comments in the margins.

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 Write “defensively” (part 3)
 Do not speculate or play lawyer.
 Do not blame anybody else in the company or refer to
internal differences of opinion.
 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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 Titanic as an example – Conventional Wisdom
 Lookouts not on duty or asleep
 Poor design or construction
 Going too fast at night
 Captain drunk
 Obama’s fault

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 Titanic as an example – New Theory
 Rare Oceanic Mirage. Titanic was sailing from
warmer Gulf Stream waters into the frigid Labrador
Current, where the air column was cooling from the
bottom up, creating a thermal inversion.

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 Legal Tools to Protect Business Information
 Attorney-Client Privilege
 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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 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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 Attorney-Client Privilege in the digital age.
 Attorney should be in the “TO” field.
 CC: Non lawyers on “need to know basis” The privilege
only extends to non-attorneys where it is clear that they
are acting at the direction of legal counsel.
 Consider verbal communications.

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 Use the darn phone!

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 “Work-Product Doctrine”
 Independent source of immunity from discovery, separate
and distinct from the attorney-client privilege.”
 Broader since it protects materials prepared by the attorney,
whether or not disclosed to the client, and it protects
material prepared by agents for the attorney.
 Protects material prepared by NON-Attorneys if prepared in
anticipation of litigation.

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 Work-Product Doctrine
 Litigation need only be contemplated at the time the work is
performed.
 Work-Product may include interviews, statements,
memoranda, correspondence, briefs, mental impressions,
personal beliefs, etc.
 Compared with Attorney-Client:
 “Factual" work-product may be discoverable upon a showing of
substantial need for the information.
 “Opinion" work-product -- which reflects counsel's subjective beliefs,
impressions, and strategies regarding a case -- is nearly absolute.

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 Confidential Business Information
 Information such as trade secrets, processes,
operations, style of works, or apparatus, or to the
production, sales, shipments, purchases, transfers,
identification of customers, inventories, or amount or
source of any income, profits, losses.
 EPA and States have well-established processes to
establish this protection.

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32. REGFORM WATER CONFERENCE
COLUMBIA, MISSOURI
SEPTEMBER 10-11, 2015
SAFE(R) COMMUNICATIONS
Roger Walker
Executive Director, REGFORM
Roger Walker JD LLM (Environmental Law)
Principal, RAWalker & Associates LLC