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Is the next email you send a legal time bomb?

If you want a poster boy for the perils of using emails at work, it’s Kurt Mix. Kurt was a BP engineer who was working conscientiously on the Macondo spill. He deleted hundreds of emails messages he’d exchanged with his supervisor and contractor, and was accused of obstructing justice by destroying evidence (source: Daily Telegraph dated 14/6/14) – Project contract dispute. He later escaped jail only due to a procedural irregularity. 

So what went wrong for Kurt? In my experience emails and other informal contract correspondence are a deceptive hybrid of a conversation and a letter without actually being either.

Conversations are informal, and the words used are generally spoken as they come to mind. Guesses are made, possibilities are explored and ideas are floated. However, they are usually transient, and the participants have only a memory of what was said. There is no contract correspondence, evidence that can be used in a contractual dispute.

Letters, on the other hand, are formal documents, with words that have been well thought out and considered, ideally by more than one person. They carry more weight, and can be used as evidence even by people who they weren’t addressed to.

So far so good, but where do emails fit in? 

Emails are often written casually, almost like a conversation, without serious consideration. Yet they are evidence, just as strong as letters. This makes them ticking bombs in the wrong situation.

When dealing with contract correspondence, bitter experience has shown that emails are a bad way of doing business. They are often sent in innocence – or even naivety – by technical staff who assume they are making ‘non contractual’ statements. Too frequently they are not checked with a manager who’d be able to tell them otherwise.

This means it’s a shock to everyone when an email is brought out as evidence in a claim.

To avoid the pitfalls of this dangerous medium, proper controls must exist over contract correspondence. Effective management ensures the right directions are given, the right words are used, and the right people know what’s being sent. Whichever party you are, company or contractor, you need a proper contract risk management solution like ProCon.

Personally I’d outlaw the use of emails on a contract. Better to talk and properly capture the communication trail in a formal process which can be authenticated, audited and acted on.

Otherwise you could end up as the next Kurt Mix!

What’s is next?

About the author
Geoff Lill | Non-Executive Director
Geoff has worked in the oil & gas industry for over 35 years. Responsible for all aspects of Contracting and Procurement (CP) in capital projects. Geoff now runs his own consultancy - Byzantec –focussing on sharing best practise on project CP.
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