This rule applies in civil cases, not just criminal proceedings. First, what you say may be used in court to prove liability. Apologizing to your subscriber could be viewed as an admission of liability. I once had a case where my client told a subscriber after a catastrophic loss: “I guess that’s why we have insurance.” I didn’t look forward to hearing that testimony at trial — it likely would be viewed as an admission of liability and it give the jury permission to award big damages since my client had insurance. Be careful!
5. Preserve evidence —good and bad.
The law imposes an obligation to preserve all evidence — electronic records, physical files, recordings of central station calls, video, etc. The temptation that clients have is to suggest — with a wink and a nod — that perhaps the evidence will somehow end up lost or destroyed. Don’t do it! If you fail to preserve evidence, you will create even more problems.
You should have a written policy that addresses the retention of documents, including electronic documents, and requires employees to retain copies for certain periods of time. You should also have a written policy that directs employees to retain files, records and documents in the event of a possible loss. The bottom line is that your inability to produce evidence can result in a number of problems, including significant penalties in a lawsuit, such as the presumption that if you had produced the documents or other evidence, it would prove the other’s side’s case.
6. Consult legal counsel.
Of course I’m going to suggest that you consult a good lawyer. But here is an important reason you may not know or understand — the only protected form of communications regarding a subscriber loss is likely to be communications with you lawyer. Conversations or other forms of communications, including e-mails, with anyone else are probably discoverable in litigation — meaning you will have to provide them to the other side. And it never ceases to amaze me the things that people say and do (especially in e-mail) that come out in discovery.
If you need to conduct an investigation, don’t do it yourself — every single thing you do as part of your investigation is discoverable by the other side in litigation. That means that if you decide to investigate, you might have to turn over all of your notes and any documents you create in connection with the investigation. Your communications with others (written or oral) other than with your lawyer are also be discoverable and could result in the opposing lawyer taking a deposition to get testimony from everyone you spoke to as part of your investigation.
If you want to undertake an investigation, or even if you just need some advice on what to do next in response to a subscriber claim, call your lawyer — preferably one who works in and has experience in the industry.
Eric Pritchard co-chairs the electronic security group of Kleinbard Bell & Brecker LLP. Pritchard focuses his practice on the electronic security industry with an emphasis on acquisitions. This column does not constitute legal advice; please contact an attorney with specific questions.