Transcript

Host: Hello, and welcome to Prevention and Protection, the United Educators Risk Management podcast. Today, Joanne Dunlap, United Educators Risk Programs Researcher, will be joined by two colleagues, Lindsey Dunn and A.J. Kornblith. Both are Resolutions Counsel from the Resolutions department. Joanne and her colleagues will discuss the importance of file documentation and the role it can play in risk mitigation efforts.

Before we begin, a quick reminder that you can find other episodes of Prevention and Protection, as well as risk management resources, on our website, www.ue.org. This and all podcast episodes are also available on Apple Podcasts and Spotify. Now, here’s Joanne.

Joanne Dunlap: I’m very happy to be discussing this topic. But first and foremost, I’d like to welcome my coworkers, Lindsey and A.J., and have you both tell our listeners what you do here at United Educators.

Lindsey, I’ll start with you. Thanks for being here.

Lindsey Dunn: Thanks for having me, Joanne. So here at UE, I manage and resolve high-exposure claims involving students, employees, and third parties that are unique to educational institutions. Primarily involving Title IX issues, employment and tenure, premises liability, and other tortes.

Dunlap: Wonderful. Thanks, Lindsey. And A.J., appreciate you joining us.

A.J., can you tell us a little more about your background?

A.J. Kornblith: Glad to be here, Joanne. Much like Lindsey, I help craft litigation strategy and manage claims, from Title IX and employment cases to complex antitrust lawsuits.

Dunlap: Great. Well, I’m really pleased to have you both on this podcast to share your knowledge and expertise on documentation practices.

During the podcast, we’re going to touch on four of the common issues surrounding documentation: The lack of proper documentation, unsolicited or too much documentation, the right type of documentation practices, and the importance of proper storage and retention.

With that said, let’s get to it.

In my first four years with United Educators, I worked in the Resolutions department. And I remember handling matters where poor documentation practices created challenges to defending a claim, particularly in employment matters. Can you expand on this? Lindsey, I’ll start with you.

Dunn: Sure. One of the issues we see a lot in employment claims, like you mentioned, is performance reviews and evaluations that inaccurately reflect an employee’s performance. For example, they’re performing negatively; however, their performance reviews are glowing and five stars. And when an adverse employment decision is made, the employee is quite shocked to find out that all this time, the institution has been having issues with their performance.

Dunlap: A.J., your thoughts?

Kornblith: Yeah. No, I agree with that totally. Or maybe the employee isn’t shocked, but by the time they get to litigation ... if they’ve brought an employment discrimination claim. They claim they are shocked, even though they’ve had lots of conversations with their manager about performance, but those conversations were never documented. So they can feign surprise, and as it turns out, a jury might believe them. Another issue you get, certainly when you have lack of performance documentation overall. It’s funny. A lot of employers, especially smaller schools, independent schools, don’t necessarily have regular performance documentation. And they sometimes get punished for that.

I had a case in Boston earlier this year where they had years of issues with an African American employee who subsequently brought a race discrimination retaliation claim. But the documentation of his performance issues, even though there had been many conversations over the years, was just poor. And we actually, in the run-up to trial ... the case eventually settled. But in the run-up to trial, we did what we do here sometimes called a mock jury exercise, where we actually bring in members of the community to serve as jurors. And they kept asking, “Well, where’s the performance documentation? You had issues with this guy for years, where’s the documentation?”

And just that lack ... even though there had been conversations with this particular guy for years. And there was emails, there was scattered documentation, but there were no performance reviews. The kind of documentation that jurors really expected was not there, even though this was a relatively small operation that didn’t often do these reviews as a matter of course. But jurors really expected there to be documentation and our mock jurors told us in no uncertain terms that they were not ... didn’t really believe that the school had those issues that it claimed to have.

Dunlap: Wow. That’s really important information to consider there. Missing documentation can be problematic in incident response matters too, right?

Kornblith: Definitely, when you get general liability claims. We’re talking about routine maintenance. Trying to prove things that are routinely done, trying to prove it later on ... you may not get a claim until years later. Trying to prove that, for instance, a bathroom was cleaned on a particular day. I had a case like that, where it was literally just ... an elementary school girl fell on a bathroom floor. There were conflicting accounts about whether the bathroom was cleaned that day, and four or five years later, we’re trying to prove whether the bathroom was cleaned or inspected on that day. And we had no documentation to do it and it made for a much more difficult case.

Similarly, another case recently involving an auto accident and a car that pulled into a driveway that should have been blocked off on a university campus. Four or five years later, we’re trying to prove, well, was the chain up that day? Why was the chain ... was there a very good reason the chain that was blocking that driveway was taken down on that particular day? Maybe there was, maybe there wasn’t, but we have no way of proving it. And it really can create headaches years down the road if you don’t document these sort of routine activities.

Dunn: Touching on what A.J. mentioned, if there’s no documentation, often in a claimant’s attorney’s mind, it’s like it never happened. So it’s difficult to shore up that kind of evidence and documentation, as A.J. was saying, years later. Whether it’s anything from snow or ice removal or tree maintenance or repairs that are made. And it’s really important that employees understand the importance of consistently and also uniformly, to the extent possible, maintaining those types of logs and records.

I also had an unfortunate case that was actually a premises liability and negligent security case that involved a dormitory. And the logs there that were really significant were related to those security issues. So security patrols at the dorms, the resident assistant patrols, access to the dormitory, all of those were very significant in the case. So it’s important to keep that regular documentation.

Dunlap: Thank you both. So documents in these situations clearly can make for compelling evidence. What types of documents are we including here?

Dunn: First and foremost, I think with respect to the type of documents as a whole, it’s important to make them as contemporaneous as possible to whatever the incident, accident, decision may have been taken, you want to try to memorialize that as soon as possible afterwards. For an employment or student discipline type claim, the type of documentation may include witness interview summaries, written statements, email documentation regarding if there’s a back and forth about accommodations, for example, that the employer or student is requesting.

For accidents or other incidents causing bodily injury, those types of documents are important, in addition to incident reports and any other documentation that institutional policies and procedures require. That can be a really tricky point, again, if you get into litigation and before a jury and the institution actually has policies for documenting or memorializing when an incident occurs on campus, and then that wasn’t done or it was incomplete. Oftentimes you may also want to take photographs of the scene or document actions taken post-incident.

Kornblith: And I’ll just add, I mean, sometimes this could be as simple as you’ve had an in-person meeting with somebody and you send an email afterwards memorializing what happened, because emails live on in a way that recollections do not. And you really can’t depend on, particularly your claimant, is going to remember this conversation the same way that you did. Assuming that your manager or your HR person or your janitorial staff who had to clean up something is going to remember it at all.

Dunlap: So building on that, is there such a thing as too much documentation?

Dunn: In certain instances, we have seen in claims where there can be, “too much documentation.” And I say that both from a practical and a strategic perspective. From a practical standpoint, you go into litigation and the amount of records and documents, emails in particular, like A.J. mentioned that lasts forever, can be so voluminous and overwhelming. So not everything necessarily needs to be emailed.

Additionally, outside of litigation context, records can be available through other avenues, like a public records request or a Freedom of Information Act request, and those don’t necessarily apply only to public institutions. So you do have to be careful what is documented. In a difficult situation, sometimes it’s best to just pick up the phone.

Kornblith: At my old law firm, one of the associates I used to work with had something cross-stitched on his wall. It said, “Dance like no one is watching. Email like it will be read out loud at a deposition.” And I always think of these as words to live by, particularly whenever I start to put fingers to keyboard writing my own emails. Certainly I’ve seen cases where the people who are involved in difficult discussions, particularly in employment cases ... I’ve seen Human Resources people just writing snarky messages to each other about the people that they’re working with. Maybe they think that there’s some sort of confidentiality or privilege attached to these, and we’ll talk about that issue a little bit later. But these records stick around.

And there’s really nothing that can immediately destroy your credibility like snarky emails showing that you’re not showing ... this person who’s come to you with an issue about discrimination or retaliation. They come to you, and then the minute they leave your office, you write a snarky email to a colleague about how stupid they are or something like that. I mean, that just absolutely destroys your credibility.

Another thing that people and institutions often don’t think about is various forms of instant messages. Microsoft Teams has something like this, Slack, there’s a bunch of variations on this. But if your institution has a document retention policy, that means that all of these messages are saved and that can often be a default setting that these messages are saved. People say things in those sorts of instant messages that they would never think to put in an email. And they might have the filter to say, “Well, I wouldn’t put this in an email, but I’m just chatting with my friend.”

And I’ve seen those produced in discovery. I think in private practice I had a construction case that involved some very complicated issues. And the client we were representing, some of our employees basically said, “Yeah, there’s no way these idiots we’re working with are going to understand that.” Well, that was a problem when the claim was later that we didn’t adequately explain it to them. And we basically had chat messages that confirmed that, and that was a real problem. So you really have to think about, it’s not just emails, it’s really all the different written media that your employees can use to communicate.

Dunn: Yeah. I have a very unfortunate case that’s been ongoing for many, many years, where one of the members, actually of the board, sent unflattering messages regarding Title IX complainants. And so you can imagine how that has impacted the litigation and the valuation of that claim, and certainly something a jury would be really, really unhappy with.

You also want to be cautious when you document some type of follow-up action, and then you don’t follow through with that action, because that can also lead to problems down the road.

Kornblith: Yeah. You kind of overpromised and underdelivered. And just to mention, in addition to chat messages, text messages. Particularly if it’s on phones belonging to the institution, but even if it’s on employees’ personal phones, that’s not necessarily beyond the long arm of discovery.

Dunlap: Thank you. Really good points there. So ideally, who should be deciding what information should be documented?

Kornblith: I mean, it’s always tough when you have a large, diffuse institution. You’re never going to be able to control everything that your employees are putting into writing. Training particular subsets, I think particularly HR people, getting them trained, getting managers trained. Understanding what your document retention policies are and what kind of documents are going to be saved and what kind of documents are not going to be saved. And thinking not only about how long things are going to be kept, but whether certain things are going to be kept or not.

So I think having those overall policies in place, having some basic training on them, just making people aware. I mean, like I said, just having that cross-stitch in the office on the wall reminding me that every email could possibly come back to haunt me, is kind of a good reminder. You almost have to instill that fear a little bit to make sure that people are just ... not that they’re not going to document things, but they are conscious of what’s being documented.

Dunn: Yeah, I think that’s a really good point, A.J. Just to bring the level of awareness to even know when it might be a good idea to talk to your supervisor or perhaps reach out to HR or risk manager or general counsel’s office if that is available at your institution, with respect to getting clarification if they’re not familiar with what should and shouldn’t be documented.

Dunlap: OK, great. So clearly the last thing anyone wants to do is undermine official documentation. So what’s a good safeguard for this?

Dunn: Having a template or a form for routine documentation is very, very useful because you’re ensuring some consistency and uniformity just by the fact of having a form. That said, that’s not really effective if employees are not utilizing that form or they’re not filling it out to completion and providing the information that’s actually being requested.

In terms of who should be documenting these conversations, the meetings, obviously Human Resources, Title IX, but for faculty, staff, employees, documenting is important also. And of course, often faculty, teachers, and other staff are the first interaction that a student is having, whether it is a request for accommodation or a grade change or what have you. So as A.J. mentioned earlier, if there is some kind of verbal conversation, it’s important that everyone know that they should be documenting that in writing after the fact.

Kornblith: Yeah. I know we just basically tried to scare the bejesus out of you about the perils of too much or wrong documentation, but I would generally say that having some documentation is much better than none, if you’re looking for basic rules to live by. It really doesn’t need to be perfect. But getting that habit of documenting and documenting the appropriate stuff is really important. I think meeting notes are really critical, especially in areas like employment, student conduct, and Title IX settings. So much of these are, “The student came into my office and talked about this” or “The employee came into the HR administrator’s office and raised this or that” complaints. And those stories can change dramatically by the time an employment charge is filed or a lawsuit is filed.

But having notes that basically allow you to bring the narrative back to say, “No, this is actually what we talked about. Yes, you raised that complaint and here’s what I told you to do about it. Here’s the remedial action we discussed. Yes, I actually did tell you that we were having this performance issue and this is how we talked about it.” It’s just really important to have either notes from those meetings that you can refer back to by the time the case gets to discovery or an email confirmation after the fact to say, we just discussed X, Y, Z. You’re going to do A, B, C to try to remediate this issue. Again, doesn’t have to be perfect, but some documentation is going to be better than not.

This is especially important, I think, when you’re responding to complaints, employee or student discrimination or retaliation complaints. I mean, sometimes the when is almost as important as the what, to make sure that you’re actually timely responding to these sorts of complaints. You can really create some issues later if it looks like there’s just a huge gap in the timeline where a student or an employee raised a complaint in January, and the first email or other document you have about it is May. Even if you’ve really been discussing it all along the way, you’ve got a problem when that case actually gets to litigation.

Dunlap: That’s great. And what about considerations for confidentiality or attorney-client privilege? Should institutions be wary of that?

Dunn: Yes. Institutions should be cognizant of this issue, along with their employees. In particular, I think that employees sometimes think that if they copy an attorney, that the communication is automatically therefore protected by attorney-client privilege. Or if they label the email as privileged, then automatically it’s privileged. And unfortunately, the institution is the one that actually holds the privilege. And when in doubt, don’t put it in an email and seek further advice on whether or not something is actually privileged.

Kornblith: If you don’t know whether it’s privileged or not, ask, I think, is the right answer. There are all sorts of misconceptions about privilege. Even attorneys have all sorts of misconceptions about privilege and it’s really best to pick up the phone, ask the question. If you don’t have an Office of General Counsel at your institution, sometimes that means picking up the phone and making a call to your friendly neighborhood outside counsel to get clarification on that.

But lots of things come up during privilege reviews where the claims of privilege are really questionable, and you don’t want that to be the ... you don’t want that to be where the really damning statement exists.

Dunlap: Now, A.J., you touched on retention earlier, which raises an important point. These documents, they might be needed to defend a claim at some point in the future. So how should institutions be managing handling their documents?

Kornblith: It’s a hard question, just because you’re talking about a range of documents over a diverse, wide-ranging institution, whether it’s a small independent school or a massive research university. And I think it all comes back to that document retention policy. Being able to know how long emails are going to be held on, know how long chat messages, know how long public safety reports are going to be held on, know how long student discipline reports are going to be around for.

I mean, it is a boring as heck document. Nobody likes document retention policies. They are a pain to write, they’re a pain to redo. And especially as technology and different media evolve over the years, these policies need to be updated. And they’re the kind of things that people love to shove in drawers and never look at again. But I mean that’s really, I think your bedrock, and so many things come back to that. It’s also important to make sure that you’re keeping the kind of documents you might need so that you are able to defend yourself later. So I think it all goes back to that. It’s a very boring but very important policy.

Dunlap: Thank you. So then ideally, Lindsey, who should have access to these documents? And can you share some guidance on how documents should be retained?

Dunn: Well, I think that goes back to what A.J. was discussing as far as a document retention policy. Which should, ideally, specify who has access to what types of documents, and how those documents should be retained and for how long and what storage format. You’d be surprised how many faculty members can end up with drawers of papers from the 1990s that probably should have been shredded a long time ago. So it is difficult, especially on larger campuses which are more siloed. But of course, if you do have a document retention policy, it needs to be implemented and followed.

And it may be helpful in the case of a claim being made and the collection of documents being required, to designate a single individual to be a point person to collect information from different offices. He also, in the event of a claim, typically would probably send out a litigation hold or some sort of preservation notice so you would suspend whatever document retention policies are currently in effect. We’ve also seen at UE that sometimes an interdisciplinary team, so representatives from different offices across campus, can help with information sharing and ensuring that documents are maintained consistently.

Dunlap: So a question for both of you. Do you know of any circumstances where poor management or retention has been detrimental to a claim?

Dunn: Yes. I know of many, unfortunately. So as A.J. has touched on, and I was just mentioning, employees like to keep records for a long time, both in their offices and also sometimes offsite. We hope that they are on the institutionally provided technology. However, with the advent of all these cloud sites, and sometimes they use their personal Gmail account, documents can go all sorts of places. So we’ve certainly seen that come back to haunt us.

In particular, I had one case recently where one of the key witnesses who said he had no responsive documents found a treasure trove in his attic. Which then we had to produce, of course, late. And the plaintiffs are seeking sanctions and all sorts of fun stuff.

So it’s also, from a timing perspective, we now are seeing some old claims become resurrected and they are now able to be raised even though they’re a decade or so years old. And poor records management, being unable to locate the records, or the records have been destroyed, it’s really difficult to prove a institutional action when you have no documentation of what happened 10 years ago.

Kornblith: And I’ll just add one story. I was in the middle of a deposition once as a public safety officer in a Title IX complainant case. And in the middle of the deposition, we’re going through the notebook in which this person had been taking all of her notes when she interviewed the complainant and other witnesses. And in the middle of the deposition she says, “Oh, this is only half my notebook.” There was a whole other half of her notes that just hadn’t been produced. We had to stop the deposition. We had to basically shut down discovery in the case for a few weeks while we went back, rifled through her office, found the other half of her notes.

And it was not a good look. It was not dooming in the end, it was fine. But for a minute there, it was a bit of a panic. It’s like, “Oh, this is a major witness in the case, and we just admitted that we haven’t ... we’ve literally reached depositions. We’re at the pinnacle of discovery. And we’re almost back to square one here.”

Dunn: Yeah. And judges love that.

Kornblith: Oh, yeah. And at that point, we basically just had to crumple. We said, “We’re going to stop this deposition now. We’re going to give you guys more time later.” We just had to completely give up a ton of ground in the discovery battle to repair this.

Dunlap: All right. So what I’m really hearing here is that institutions should have document practices in place, they should have policies in place, and that they should ensure that those policies are being followed. So I have one final question for you. How about the sharing of documents externally, with say, family members or the media?

Dunn: No. That’s the short answer. The longer answer is that within the terms of the institution’s policy, there may be circumstances where that is going to occur. If it’s something shared with the media, I would hope that’s going through whoever the point person at that institution who has contact with the media is. If it’s the family, I mean obviously in K-12 setting and a higher ed setting, there are some differences. But with student records, you have the issue of FERPA and confidentiality. So institutions need to be very, very careful about sharing information with family members.

And then, as we were just talking about privilege issues, there’s also the issue of potential waiver of attorney-client privilege if certain documents are disclosed to a third party. So that’s something to be very cautious about.

Kornblith: Everyone wants to be the whistleblower. Everyone wants their moment of glory. They’re going to have their moment in the sun by giving something to the media, or they’re going to score some points in a particular public relations battle. And it’s usually not a good idea. The only thing I will say is, particularly when you’re dealing with something like a catastrophic injury or a tragic accident like a suicide, again, you have to follow your policies, but you do have to be careful not to be totally reflexive.

I’ll give a plug for UE’s Cool Head, Warm Heart® approach, where you really think about, is what we’re doing ... are we being overly protective, overly reflexive? Is there something that we can do for a grieving family or somebody who’s hurting? But you do still have to think very carefully about your policies and make sure if you’re going to do this, you’re going to do it in a way that’s supportive of this person. Make sure you’re doing it right as opposed to just doing something reflexively. It’s a good conversation to have with your UE claims rep. It’s a good conversation to have with your counsel.

Dunlap: Excellent. Thank you both so much. This has been a great conversation, and I really appreciate your insights here. You’ve really provided some valuable thoughts concerning documentation practices. Lindsey, what would you say is your biggest takeaway for our listeners?

Dunn: Well, of course, our hope for all of our listeners and educational institutions, is that they can mitigate risk and avoid claims. And certainly one way to do that is ensuring timely and appropriate documentation, depending on a given situation. As we’ve mentioned, people change jobs, memories fade, sometimes individuals depart an institution in some unfavorable circumstances. And having that documentation ensures some transition of institutional knowledge, which is really essential.

And should the matter get in front of a jury, to a trial, ensuring that you have documentation that’s consistent with the story that you’re telling that jury also gives a lot of credibility to the institution. And it is much more compelling than witness testimony alone.

Dunlap: And A.J., how would you summarize the importance of documentation?

Kornblith: Yeah. I think I’m going to largely repackage the same point Lindsey just made, but I’ll put it this way. A lot of litigation is about being unfairly judged by strangers, be they judges or juries. Regardless of sophistication, they will hold you to unreasonable standards, particularly when it comes to having excellent documentation of routine things you wouldn’t think need to be recorded or that you think you’ll remember years later.

Having good policies and practices in place to automatically or routinely capture those things will bring you that much closer to meeting those strangers’ unreasonable standards, and make you that much more credible in their eyes. And that could be the difference between winning and losing.

Dunlap: Thanks so much. I appreciate you both.

Host: From United Educators insurance, this is the Prevention and Protection podcast. For additional episodes and other risk management resources, please visit our website at www.ue.org.