Here’s What Journalists Have Learned About Saying Too Much in an Email

By Jack Limpert

Politicians seem slower than journalists to learn that what you put in emails can get you fired. The latest:

Amid furor over an email leak that revealed a bias against Bernie Sanders inside the Democratic National Committee, Debbie Wasserman Schultz announced Sunday she will step down as chair.

Hillary Clinton’s leaked emails from her private server continue to be a ticking time bomb in her presidential campaign, and here’s another 2016 email story—from the Washington Post—involving Donald Trump.
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Republican presidential candidate Donald Trump’s disparaging remarks last summer about illegal immigrants “essentially torpedoed” the planned Spanish restaurant that Washington-based celebrity chef José Andrés had agreed to open in Trump’s luxury Washington hotel, the restaurateur said in a new legal filing.

A quick refresher: After Andrés walked away from the planned eatery, Trump slapped Andrés with a $10 million breach-of-contract lawsuit. Andrés countered with an $8 million lawsuit, arguing that Trump’s comments about immigrants constituted the initial breach. (The legalese boiled down to something along the lines of “but he started it.”)

In the filing asking for a summary judgment, Andres and his company detailed earlier claims about how Trump’s calling illegal immigrants “rapists” and criminals had made it impossible to run a successful Spanish restaurant. Andres quantified the challenges the controversy presented in hiring staffers: They were “suddenly confronted with the task of recruiting Hispanics and Hispanophiles to work at a place closely identified with a man whose statements had made him a pariah for the great majority of the Hispanic community,” according to the document.

The filing reveals emails sent between Andrés’s Think Food Group and the Trump organization. In one exchange, a Think Food Group executive complained that they were “getting hammered” over the statements.

Her email to Trump’s daughter Ivanka Trump was passed along inside Trump headquarters, according to the filing, “prompting the following response from the Trump Organization’s David Orowitz: ‘Ugh. This is not surprising and would expect that this will not be the last that we hear of it. At least for formal, prepared speeches, can someone vet going forward? Hopefully the Latino community does not organize against us more broadly in DC/across Trump properties.’ ”

Donald Trump Jr. responded: “Yea I was waiting for that one. Let’s discuss in the am,” according to the filing.
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And an earlier post that shows why lawyers love it when journalists say too much in an email:

Barry Levenson, a reporter for the Washington Star who went on to become rich enough to own a sports team, now is selling his controlling interest in the Atlanta Hawks NBA franchise after an email he wrote became public. In the email he complained about too many black fans at Hawks’ games and he suggested ways to get more whites to come to the games. The email went viral and quickly was judged racist.

A Weekly Standard story described how William Langewiesche, a writer for Vanity Fair, seemed to work far too closely with a lawyer, Steven Donziger, on a story about how the Chevron oil company operated in Ecuador. When Chevron was hit with a $9.2 billion judgment and countersued, emails between writer Langewiesche and Donziger, the plaintiff’s lawyer who was suing Chevron, became public. The Weekly Standard story suggests that the emails showed that the alliance between reporter and plaintiff’s lawyer—something that happens more often than is acknowledged—created journalism that if not unethical seemed to cross lines of fairness and objectivity.

As a magazine editor, I heard the email alarm bells go off fairly regularly. Sometimes it was a Levenson type email about how the magazine operated, what we covered and didn’t cover, what we thought of certain people. In the early digital days, I’d sometimes tell writers or editors that I’d rather they didn’t say such and such in an email and they’d say, “No problem. I’ll delete it.” It didn’t take long for it to sink in that you can hit the delete key all you want but emails are forever.

The alarm bells rang loudest when we were working on a story that could get lawyers involved—and in some years that was a lot of stories. Any litigator will tell you that after a lawsuit is filed, one of the first things a lawyer does is ask for all emails to and from you, your editors, the writer, and others. What seems okay when you write it—”This writer needs really good fact-checking”—can be very hard to explain in a deposition or trial.

Doing journalism is not the same as Chicago politics but there were times when I used the old Windy City line: “Never write it if you can say it, and never say it if you can just nod your head.” I didn’t mean the last part but sometimes it is better to not say things in an email that could cost you dearly in a lawsuit.
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A Washington lawyer told me that one of the first things he does in a lawsuit is demand all emails that could have any bearing on the case. There could be tens of thousands of emails, and legal teams go to work looking for any comments that could be damaging to the other side.

All this also brings to mind a lawsuit—in the pre-digital age—that shows the dangers of reporters casually making jokes or barbed comments. It involves Washington Post reporter Patrick Tyler and a story about William Tavoulareas, head of Mobil Oil. The resulting lawsuit was won by the Post but it probably cost the newspaper $10 million in legal fees.

Here are three grafs from a Washington Post story that showed Tyler talking too much, the kind of smartass stuff that now is too easy to put in emails:
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During their conversation with Piro, Golden said that the physician mentioned that the elder Tavoulareas kept his tax returns and important personal papers in a safe at his New York home, at which point Tyler raised the question of whether they could find someone “who could rifle the safe.”

Tyler said at one point during more than 30 hours of depositions in preparation for the trial that the remark was meant as a joke.

Later, Golden testified that as he and Tyler were returning to Washington from Baltimore after interviewing Piro, Tyler, then in his first year at the Post, remarked: “It’s not every day you knock off one of the Seven Sisters,” referring to the seven largest international oil companies, including Mobil.
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As Patrick Tyler, William Langewiesche, or any other journalist who’s been involved in a lawsuit will tell you, going through interrogatories, depositions, and a trial with a battalion of lawyers is likely to be the most painful experience of your work life. I had only one lawsuit go to trial, and we won it, but there were a half-dozen other cases that drained millions of dollars—and a lot of time and energy—from the magazine that could have been spent on good journalism.

When in doubt, don’t put it in an email. To repeat what they say in Chicago: Never write it if you can say it, and never say it if you can just nod your head.