Episode Seventeen: Whatever You Do, Don’t Hit Send

In this End-of-the-Year Bonus episode, Christina, Lisa, and Miriam talk about emails and texts that you and your colleagues should not be sending. Enjoy and have a fantastic winter break!

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Miriam: Welcome back to our last episode of Season One of Class Act: Updates in Education Law, our award-winning podcast. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter | Haverfield, we practice school law. Every so often every few weeks we get together and we just chat about the most recent legal developments that are relevant to school boards, administrators, teachers, anyone who works in the schools.

Lisa: Hello to all our listeners. Today we have a great episode for you to remind everyone about the dangers of emails and text messages. With us today we have Christina Peer. Joining us again a partner at Walter | Haverfield. Welcome, Christina.

Christina: Good morning! Thanks for having me back.

Lisa: Christina often presents on student privacy and the law. We’re really excited to have her join us for this episode.

Miriam: I just want to say I know that all of you listening, all of our audience members have heard so much about emails and probably text messages. I’m sure you go to HR meetings all the time. We do but we cannot stress… I just cannot stress enough the dangers of emails and text messaging and that’s why we wanted to talk about this today. We also have some funny stories. On that note, I just want to warn you that if you’re listening with children, this episode does make mention of the word “sex”, so you might want to wait until you’re not in the car with children. [laughter] That’s up to you. Just giving you a heads up right there.

Lisa: Let’s dive right into some dos and don’ts of what to do with emails when you are working for a public entity like a school district. Christina, can you give us your number one?

Christina: Absolutely. I talked about this all the time when I go out and I do presentations because no matter what I’m talking about, I always try to add a little bit in about emails and text messaging because like Miriam said, I really don’t think you can tell people enough the dangers that come from potentially sending emails or text messages from your school account or for text messages even from your own personal phone. Here’s a do, do remember that every single email that you send from a district email account is not private. I think everybody thinks, “Oh, it’s my email account.” But it’s actually coming from a district email account. You don’t own that email account the school district does. Everything you send could potentially be a public record, it could potentially be a Student Educational record. Or it could just be something that’s not a Student Educational record or a public record, but here again, it’s still not private. Other people working in the district, like say, the good folks in the IT group could actually access your emails. Don’t think that what you’re sending back and forth with your spouse, for example, is just between you and your spouse if you’re sending it from your district account. I can guarantee you it is not.

Miriam: I think that happens all the time. I think people get into a little habit of thinking that the emails they are sending to their close group of friends or close group of administrators or teachers. They think that it’s private and almost becoming like a little Facebook message or whatever, and you get lulled into this false expectation of privacy, which you don’t have. Your emails can be read by anybody at any time. That’s really an important takeaway here.

Lisa: Absolutely. Let’s just remind our listeners of the main ways that these might get requested. Christina, I think you mentioned both. We have public record requests because you’re working for a public entity.

Christina: Sure.

Lisa: Then we also have student record requests. If you are referring to a specific student in your email correspondence, and this doesn’t matter whether it’s by full name, initials, partial name, even really, if you don’t have the name, but it’s clearly about a specific student. Those would all equate to an educational record that the parents can then request and see.

Miriam: Can you just emphasize that again about the initials because I think people don’t understand this?

Lisa: Yes, absolutely. I know as an educator previously, often I was told if you just use the initials, then it keeps the privacy in the email correspondence. This actually poses a bigger problem. On the other end when an education records request comes across. As a district’s attorney, we asked the district to then do searches of emails to pull what’s relevant, and then we have trouble finding everything. Say you use just the student’s initials, we’re then going to have to tell the district, okay, you need to do a big search using the kid’s initials and we’re going to have to weed through all kinds of…crud, basically.

Christina: Thousands and thousands of miss-hits, basically, that then have to be weeded through to find the ones that are actually relevant or pertinent to that students.

Miriam: I guess what you’re saying is that it doesn’t matter if you use initials or if you don’t even use initials if you just talk about this kid or that kid, if you’re talking about the child, that is that child student record, even if you think you haven’t identified him or her in your actual communications.

Lisa: Absolutely. An educational record is an educational record. No matter how you try to delineate it as being something different, it is what it is.

Christina: You can’t really hide it. I think people think they can hide behind the initials, but you’re not actually doing that. It’s still an educational record.

Miriam: Okay, I have a good story. All of my stories are good stories and horrible stories at the same time. This is about an administrator who was frustrated with a parent, and I am sure that never happens to anybody here, but sometimes administrators do get frustrated with parents and this person was lulled…like I was saying before, into a false sense of security, that her emails were private and, and just being read by the few people who she was sending it to. She was she began talking about the student and the parent and kind of a casual and a little bit of a disrespectful way, at some point, they were talking about this parent who’s going to come in for a meeting and the administrator says, “Wow, this is going to be a total disaster. I’m just going to take out the popcorn and I’m going to watch,” and I’m sure that she wouldn’t have written anything like that had she thought it through a little bit. Or if it had been a face-to-face conversation. That’s an example of when you’re feeling a little too comfortable and you say things that you shouldn’t say.

Lisa: Yes. Basically, if you’re not going to hit send to send it to the parent and are comfortable with what you wrote, then you probably shouldn’t be sending it.

Christina: I think going back to Miriam’s point of people getting involved into that false sense of security, I think colleagues do tend to use email sometimes thinking that they’re having a private conversation amongst themselves and they forget that they’re not actually creating educational records, but here again, even if you’re just talking to somebody else who works in the same school district, one of your colleagues, it’s still an educational record, if you’re having specific discussions about a particular student or students, even if you’re just having it, again amongst yourselves, and you’re not including any outsiders, if you will, so no parents, no outside providers or anything of that nature. I always tell people when I do presentations on this I completely understand I think everybody understands that folks get frustrated from time to time, and you have things that you want to say and that you need to vent. I’m going to give you a really, really, really cool secret for the best way to do that. We have this nifty device, it’s called the telephone.

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So When you absolutely feel like you cannot help yourself, and you have to say that this parent is a blankety-blank, blank blank, I won’t say it will try to keep this friendly. Pick up the phone and call your colleague and tell them I have got to vent to you about this particular situation. Or even better, walk down the hall and talk to them face-to-face. I realized that’s a lost art these days, but we can still absolutely do that. I will also warn you though, don’t leave a voicemail. As much as I say you should pick up the phone and call what you shouldn’t do is leave a voicemail because most voicemails these days also get saved on the district server. Here again, if you leave a voicemail about a particular students like in our office, at least the voicemails get translated into the email. If you leave me a voicemail on my phone, I also get it on my office phone, I also get it in my email inbox. IT can go back and find that as well. Again, just be careful with how you’re putting things out there and think about how they might be pulled back down to come back to be a problem

Miriam: Bite you.

Christina: Bite you?

Miriam: Bite you. I think it’s also really important to remember that there’s no time limit for from many requests, so even if it’s not a student record, even if it’s a public record, or even if it’s neither, but there’s a litigation going on and opposing counsel asks for emails and discovery. The email that you sent five years ago, may be pulled up by an attorney may be reviewed by multiple attorneys, even if it has nothing to do with any case that you’re in. You might not even be involved in the litigation or in whatever situation is going on. Here’s the terrible story on that one. Recently I was reviewing emails that we pulled because an opposing counsel asked for all emails with a very typical name in it like John Doe and we were pulling emails, we reviewed many, many emails from I would say from going back as far as 10 years and one set of emails kept popping up and it was a district employee who he had just been emailing his buddies all about the chicks he banged in high school and

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who was still around, who was still pretty hot and I really like I learned a lot of good new lingo. One of the things I learned I forgot the other one, but one of them was laying down pipe like a union plumber. That was something that was new, and I had to really think about it. I’m sure that person probably would be mortified if he knew that his private conversation about his high school, love life was now reviewed by, at least, three or four attorneys.

Christina: If I remember from when you told me the story initially, there was another component to this too. Was this person emailing within district?

Miriam: No, the person was just emailing his buddies about just outside activities. His friends were employed elsewhere. Again, this is a situation where the person thinks that their communications are secure. They’re having a private, little chat, but they’re not.

Lisa: Yes, not so private.

Christina: That’s awesome. So not only is it on the district server because he was emailing outside of his organization, now it’s probably on four other companies’ servers whether it’s other public-school districts or just private companies.

Miriam: Yes, exactly.

Christina: That’s fantastic.

Lisa: I know you had mentioned litigation earlier. This kind of brings us to another good do. If you are involved in anything, generally your counsel is going to send out a litigation hold letter that’s going to remind you of this, but if you do include counsel copied on your email, sometimes that will help to keep your email correspondence confidential. However-

Christina: Sometimes, it doesn’t. It’s actually only going to be an attorney-client privileged communication or conversation, if you are emailing your attorney seeking legal advice or if you are copying your attorney on something that you’re sending out to others because the attorney has said maybe to the Director of Special Education, “We’re in this due process. I need for you to send out this information to all of the individuals who need to get it, who are teachers working on this case,” and then, the Special Ed Director goes ahead and sends that correspondence and says, “The attorney asked me to send this to all of you so that you know what needs to happen next.” Those are all going to be privileged conversations or communications that have been had. What you cannot do is try to use your lawyer as a shield and I’ve had this happen way too many times where people are having internal conversations amongst themselves. Maybe two people, maybe a whole group of people and they literally cc me on every piece of email that they send, even though they’re not actually talking to me. They’re talking amongst themselves, but they think, “If I just copy the lawyer on it, it will somehow magically become privileged.”

Lisa: No.

Christina: But it doesn’t because you haven’t actually asked for legal advice. You’re just trying to have an internal conversation about something and not get the lawyer involved in the conversation, just cluttering my inbox. That’s not going to help you out.

Miriam: At the same time, I do want to emphasize that if there is litigation, if there is pending litigation, just because it’s a legal matter that doesn’t make your conversation confidential if there’s no attorney copied. In other words, sometimes we see these board members will be emailing each other about something, about a pending lawsuit that’s going on or an agency complaint and they just assume that because this involves attorneys, it’s confidential. It’s not because your attorneys are not on the email. It’s not confidential at all.

Christina: That’s a really good point, Miriam. It even goes on to conversations that people have and this is a little bit outside of the realm of emailing and texting, but I’ve been involved in due process hearings and the attorney on the other side will ask the witness, “Who all have you talked to about this case other than your legal counsel?”

Miriam: Right. That’s a good point.

Christina: If they’ve been having conversations, whether they’re by email or whether they’re in-person talking all about a pending litigation matter, none of that is going to be privileged unless counsel was there with you and involved in these conversations.

Miriam: Yes. You can be asked what you talked about and with whom.

Christina: Exactly.

Miriam: But that’s always better than email. You know what? Here’s the thing. I don’t want to scare anybody. I think email is a really good way to document that you communicated with somebody.

Christina: Absolutely. You just have to be smart about how you use email. It is a fantastic tool to use, to be able to document that something has been sent to someone and even that it’s been received by them because you can put a read receipt on emails so you know that it’s been opened and that it’s been received.

Miriam: Right.

Christina: If it’s someone that you communicate with via email on a regular basis, then you’ve already proven that this is a parent, for example, who will email back and forth with you. There’s no reason to not use it to go ahead and send them documents that they might need to see or information that they might need to have.

Miriam: Okay. I think those are all really important points about emails. Is there anything else we want to say about emails before we go on to texting?

Lisa: Yes, just one general reminder not specifically to legal or anything, but do be careful with your blind cc’s and your reply all’s. Sometimes you’re sending stuff to people that you don’t want to see.

Christina: Oh my gosh. And who has not been in the, “Oh my gosh, did I just hit reply to all?” Anybody here have done that besides me? I’ve done that and you’re like, “Oh no.”

Lisa: Especially with technology now, when we’re replying to emails quick on our phones and sometimes it’s a little bit easier to accidentally do ‘Reply all’ now.

Christina: Yes, absolutely.

Lisa: But, yes. Text messages, that definitely opens a whole another can of worms.

Christina: I think it’s even worse than emailing because let’s face it, when we’re emailing, most of us will go back and take a quick look at what we’ve done. Texting, you really don’t usually do that or, at least, I don’t. It’s not like I proofread or edit my text messages, right?

Miriam: No, right.

Christina: I type it with my thumbs and then, I hit the send button on it.

Miriam: Right.

Christina: It’s so easy for things to be misconstrued or because you’re trying to say something really quickly and you’re like, “She already knows all the background on that. I’m just going to put a couple of little things in.” The problem is-

Lisa: If it gets taken out of context.

Christina: Exactly, and then when that comes out, say, in litigation and something’s taken completely out of context, it’s hard to put the whole rest of the context back together when all you have is this little snippet of text message. It’s just really, really challenging. I had one recently. This was a litigation case involving a school district. The issues involved whether or not an individual’s leave was going to be covered by FMLA. There was a text message out there between the individual and the principal where the principal said something along the lines of that she herself was confused about whether the employee’s lateness to work was going to be covered by her intermittent FMLA because the employee was home taking care of a sick family member. The employee’s whole argument, after she got terminated for not being to work on time, like ever, was that– She had such an issue trying to get to work on time, but her entire argument was she thought that it was covered by her intermittent FMLA if she had to be home caring for her sick family member in the morning and then, it didn’t help that we had this text message from the principal saying that the principal was a little bit confused about things.

Miriam: Yes.

Christina: Now, do I think that that was completely taken out of context? Absolutely, I do. I think that there had been a lot of conversations with the employee about what was covered and what wasn’t. The employer had done a fantastic job of going back and saying to her, “You need to get more documentation from the doctor that says you need to be home in the mornings,” and so on and so forth, but that text message taken out of context was something that that employee was going to use against the school.

Lisa: Often there’s problems with when the district gets said information. For your example, did they have that at the beginning of all these problems? Did they know about this text message, or?

Christina: Interestingly enough, I think some of the folks in HR might have known about the message, but the lawyers didn’t know about the message.

Miriam: We’re always the last ones to know.

Christina: Here again, here’s the problem and this goes back to why text messaging is so problematic. Unlike emails, that are saved on a server, so the IT department can go back, and they can pull all of the emails that relate to John Smith, right?

Miriam: Right.

Christina: Or that are between these couple of people. You can’t do that with text messages because half the time they’re not even on a district phone. They’re on the employee’s personal phone. They may or may not get saved. Here again, let’s say you have an issue taken out of the employment context….you have a teacher who’s texting back and forth with a parent, right?

Miriam: Okay. Text messages can also be student records. Is that where you’re going?

Christina: They can also be student records, but even more to the point is the fact that– I suppose, yes, they could be student records. Although the weird thing there is they’re not really being maintained by the district, so that’s a little bit strange in and of itself, but the problem is if the teacher says something that the parent either doesn’t like or that’s particularly helpful to the parent’s case, the parent is going to hold on to that information forever. Right? They’re never deleting that text message. They’re taking a screenshot of it. They’re hanging onto it, all that. The teacher, on the other hand, might not think anything of it at the time and might be like, “Whatever. I don’t need to keep this.” Then, the district is at a huge disadvantage later on because you don’t really know what the parent has from these text messages that have gone back and forth. The teacher didn’t save them. They’re not on a district device that the district can say, “Okay. Give me your district cell phone so we can go back and try to retrieve all of these things. I’ve also been in a situation where there’s questions about, and frankly, I don’t know the answers to these questions, what happens when teachers are doing things on their own personal devices, parents make a request for all of the educational records or even public records and the teacher says, “I’m not giving you my phone. It’s my personal phone.”

Miriam: Right. It doesn’t necessarily make a difference if you’re using your district phone or your own personal phone. Those communications can still be requested by an attorney in litigation or by a parent who’s asking for student records.

Lisa: Yes, and absolutely. If these cases turn into being litigious, certainly in court a subpoena can be issued.

Christina: Sure. I think one of the things that it really just isn’t clear yet because the technology is moving, frankly, faster than the court cases are moving. I think the problem that we have is that, we have legal authority that’s out there that speaks to the fact that when board members, for example, use their personal email accounts to conduct public business those all count as public records. I can’t see why it would be different for a teacher or administrator or somebody else who’s using their private cell phone to do texts that are either educational records or that are public records because you’re conducting public business from your personal device. Like I said, I haven’t seen a case that talks about that yet because, of course, our technology is moving faster than the court system does. No big surprise there.

Lisa: Even more than just turning it over, keep in mind, we were talking about who has the information when we talk about often that you don’t necessarily see some of these contentious times coming. The parents sitting on that and might turn. You may not even remember it or that teacher may not even be involved by the time it gets contentious and we start pulling these things out of context.

Christina: That’s exactly right. The other situation that we have a lot are teachers who are texting with students and—

Miriam:  Oh, yeah…

Christina: I’m just going to tell you, I’m going to put out there just as a general rule. Teachers texting students, bad idea. Let’s just try not to go there. I also understand because so many people communicate that way especially like of an extracurricular situation, right? Like a coach.

Lisa: Like a coach.

Christina: Like a coach, right. So you have a coach who needs to let the entire team know quickly that practice has been canceled and maybe they want to let all the parents know as well? They’ve come up with a text message group for the soccer team, right? They can send out a text to the entire soccer team that says practice is canceled and then everybody gets it, everything’s fine. That only becomes a problem for the coach in that, now every kid on the team has that coach’s number and they can text the coach back and they can have private conversations not as part of the group, but private conversations with the coach. So here’s how that can all go terribly wrong. You have a coach who sends a very appropriate text message out that says, “you practice time has changed” or “practice is canceled”. Then maybe you have a student who responds very inappropriately to the coach with inappropriate comments like, “I’m so sad practice is going to be canceled… I’ll miss seeing you… my day won’t be the same because you’re not going to be in it.”

Lisa: I can just imagine how this is going to get misconstrued down the road.

Christina: Oh, my gosh! So if you’re the male coach and you’re getting that kind of a text from a female high school student…

Miriam: You are regretting so much giving our your cell number.

Christina: That’s exactly right. If you’re that coach, if you’re out there listening to us and you’re that coach or you’re that teacher…

Miriam: Don’t.

Christina: Don’t. Do not stop, do not pass go. Do not collect $200, go straight to your athletic director or your building administrator and say, “Here’s the text that I received from this student. I want to show you the entire chain. I want you to see that I sent out something about practice. I want you to see what I got in return. I’m asking for your help to deal with this situation because I don’t feel comfortable handling it myself.” You need to make sure that you get somebody else involved, who’s going to help you navigate that situation with that student because you don’t want it ever to come back out later that you either ignored it or that perhaps you sent something back to the student…even if what you sent back was totally innocuous, it can still get misconstrued later on. You want to make sure you protect yourself and get an administrator involved as quickly as you can in that process.

Miriam: It’s so important that we talked about this. Now more people are aware, I think, that texting is really just as much of a concern as emails. Sometimes, people know more about emails and they’re not as familiar with the danger of texting. Thank you so much, Christina. Thank you for coming in and joining us and thanks to everybody for listening and tuning in. Please leave us feedback and rate us on iTunes. This is the last episode of Season One. I would like you to have a great holiday season and a Happy New Year. We will be back right after the New Year with our series on hanky-panky in the workplace. I’m sure you will enjoy that as well.

Lisa: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter  Haverfield does not guarantee the accuracy of the information contained in this podcast.

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