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Thursday
May312001

Beware of What You Post

By now we have all heard of the Internet and most of us have discovered that there are thousands of message boards and email discussion groups where we can ask questions on a variety of topics. These discussion topics range from A to Z and include many topics that could have legal significance for your company.

As a sophisticated business person, you are no doubt aware that you rely on advice you receive over the Internet at your own peril. What you may not realize, however, is that the words you post may be used against you.

If I was representing an employee that was suing your business (I won't because I represent employers), representing a competitor in an intellectual property case, a customer or vendor in a contract case or just about anyone else in any other type of case, I would require that you produce all of your email and your web browser's bookmarks and history file, ask you specific questions in a deposition and review the archives for email discussion groups and Internet discussion boards that you appear to monitor or contribute to. Anything you may have stated may be admissible at trial as "an admission of a party opponent."

If you ask an attorney for advice, what you tell the attorney is covered by the attorney-client privilege. Those things you tell others are not.

If I were suing you, I would look to see if the questions or comments you posted on the Internet refer to any aspects of the case to which we were not aware or have not considered. In questions you raise and in advice you give to others, I would look to see if you made any claims, assurances, statements of policy or representations of fact that could be used against you in the present case.

As Bill Clinton and Bill Gates have learned, statements made in email and on the Internet do not go away. For litigators that seek money from your business, your written statements may be a treasure trove of evidence that can be used against you.

DON'T: Don't assume that the statements you make in email messages or discussion group postings can't come back to haunt you later.

DON'T: Although this probably goes without saying, don't rely on advice you receive over the Internet. You have no way of knowing whether the person offering the advice knows what they are doing or whether the facts of your situation and the law in your jurisdiction match the experience of the person offering the advice.

DO: Do remember that all of your written communications, whether they be agreements, letters, memos or Internet postings, must be carefully drafted to prevent legal liability.

DON'T: Don't use the Internet to discuss any issue that could have legal consequences.

Generally in these legal briefs, I try to give you more DOs than DON’Ts. In this instance, however, the best advice I can give you is DON'T!

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