My kids like to do things that make me cringe. Running full speed down the sidewalk when they were very young. Jumping from some elevated surface. Going higher, and then just a little higher, and perhaps a little higher than that, in a tree. I suppose they are like most kids in this respect, and I suppose that I am like most parents when I tell them to please be careful.
“I won’t get hurt, Daddy,” they tend to respond.
“Well, no one ever intends to get hurt,” I tell them. It’s true. Kids can fall. They get hurt.
It’s the same with litigation. No one ever intends to get sued, but lawsuits happen.
I was reminded of this by the recent case involving Hulk Hogan, the famous wrestler. Hogan filed suit against Gawker Media for invasion of privacy after Gawker published a portion of a sex video involving Hogan. A Florida jury awarded Hogan more than $100 million.
Back in 2012, when Gawker ran the story, then editor-in-chief Max Read made a joke about the tape in the company’s electronic chat platform. “Someone referred to the Hulk Hogan sex tape as ‘tender,’” Read said recently in New York Magazine. “I wondered aloud if it also contained a leg drop (a famous pro-wrestling move) – a ‘tender leg drop.’”
Fast forward a few years to the middle of Hogan’s suit against Gawker. Read, for other reasons, has resigned from the company, and his former colleagues are testifying in depositions about Gawker’s decision to use the tape. In at least one of the depositions, lawyers asked a Gawker employee about the joke. That deposition was then played at trial.
Read states in the magazine piece, “My chat joke – and my co-worker John Cook’s noble attempt to explain it to a lawyer – are now a matter of public record.”
Think about that. Read, from the comfort and security of his desk, once made a joke to fellow co-workers using the company’s internal communications system, and that joke became part of a lawsuit years later. A witness was asked about it in a deposition, the deposition was played at trial, and the trial was streamed over the internet for the entire world to see.
Then think about the seemingly innocent jokes you might have made, or forwarded, to a trusted co-worker over the years.
Then remember that while no one ever intends to get sued, lawsuits do happen. When they do, the attorneys will collect email accounts. They’ll review them, and they’ll see the jokes. If any joke was made in the context of discussing something that is relevant to the lawsuit, the entire email will be given to the other side. The email, and the joke, might wind up in a deposition or the actual trial.
I’ve seen this happen, and seen such jokes, too many times in my career. They unnecessarily complicate a client’s case. Worse yet, they can even lose the case.
These are lessons worth remembering. Keep business communications strictly for business, and don’t include anything in them that you wouldn’t want to see in court. If a lawsuit happens, you and your employer will be much better off fighting the case on the merits than wasting resources in an effort to explain some joke that, if it was funny several years ago, certainly won’t be funny at trial.
[Read’s article in New York Magazine can be found HERE.]