Caution: If it’s in writing, it will be discovered.
As the U.S. Justice Department and states investigated wrong-doing that led to the financial collapse, the nation’s biggest banks dumped tens of millions of documents on them. That’d make finding anything impossible, right?
Wrong. From that mountain of information, one internal memo emerged warning bank bosses, before the collapse and Great Recession, that they were packaging bad loans into securities.
The memo shattered the banks’ claims that they hadn’t been aware of the problem in advance, and it led to settlements totaling nearly $37 billion by J.P. Morgan, Bank of America, and Citigroup.
The moral: If it’s in writing, it will be discovered.
Even if all the hard copies are shredded and the original email is erased by the sender and recipients, it still exists — and with effort and technical know-how, it can be found.
This is a caveat we’ve raised before. But it needs revisiting because the problem keeps recurring. Why?
- Part is carelessness. Sometimes people put in writing things that shouldn’t even be spoken in private. (Although what’s spoken isn’t even safe, because you never know when it’s being recorded: Think Donald Sterling for starters.)
- Part is a compulsion to show your boss you’re on top of an issue — and that’s easiest to do in writing. That was the likely reason for the bank memo.
- Part is CYA. People want to be sure they’re protected in case the shit hits the fan.
That’s why protecting against disclosure is at the top of the agenda for a Crisis PR team.
The first step is to be engaged by the client’s lawyer. That brings them under attorney/client privilege, so information that is shared is protected by confidentiality rules.
The second is to put as little as possible in writing — and to keep what is written as general as possible.
There’s much to be said about the vanishing art of verbal communication. Not the least of which is that it’s less discoverable.
For a deeper glimpse into our world, see our book on Amazon, A Lawyer’s Guide to Crisis PR: Protecting Your Clients In & From the Media.
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You can reach Roger Gillott and Eden Gillott directly at 310-396-8696.
Gillott Communications is a Los Angeles-based public relations firm that specializes in high-stakes Crisis & Reputation Management with more than 50 years of expertise in strategic communications, corporate public relations, and working with the media.
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It IS crucial for companies and people not to put things they want secret in writing. However, when a person or company has done something wrong,, like knowingly selling bad loans out of greed, I am delighted that evidence has been left behind. There are things for which sincere apologies might work (and in the Great Recession, none have been made), but there are more things for which we want restitution. $37 billion from one bank is actually nowhere near enough.