Question:
Ken.
As you well know, E Mail it a preferable and fast means of written
communication in todays business world.
However,can confidential E mails be legally used against you or others if
they are distributed by the recipient contrary to your instructions or if
they are inadvertently sent by you to the wrong party, which can happen at
a click of a mouse ?
How enforceable is an E Mail "Designated Recipient Note" like the one
listed below ?
Note: This message is intended only for the designated recipient(s). It may
contain confidential or proprietary information and may be subject to the
attorney-client privilege or other confidentiality protections. If you are
not a designated recipient, you may not review, copy or distribute this
message. If you receive this in error, please notify the sender by reply
e-mail and delete this message. Thank you.
Bob Williams
NICET III
BRISCOE PROTECTIVE SYSTEMS INC.
Answer:
This was a tough one. Our research failed to reveal any federal or New York
statute directly on point, and the few cases that we found only touched
upon the issue.
Generally, emails are covered under the statutes that govern interception
of telephone or wire communications. Thus, it is illegal to intentionally
intercept emails.
Emails will otherwise be treated as a letter would. Certain information is
confidential, such as communication between client and attorney. I believe
the context that you may be concerned about would pertain to trade secrets
or other information that you consider confidential. Labeling a
communication confidential does not necessarily make it confidential. If
the content of the communication is in a grey area then labeling it
confidential will serve to alert the recipient that you consider it
confidential and the recipient should treat it as such.
The problem is that many people have adopted a warning that appears on the
bottom of their email, similar to the one in your email, and that warning
accompanies every email, confidential or not.
If a truly confidential email is intercepted wrongfully, then it will
retain its confidentiality.
A different result may occur however where a confidential email is sent to
the wrong address in error, or arrives at the wrong address because of some
Internet screwup. Then if the truly confidential email is received by an
unintended recipient the email may retain its confidentiality. There are no
statutes or cases that I know of that would assure this result in all
jurisdictions however.
I am more confident answering one part of your question. If a recipient of
your confidential email permits the email to be viewed by others outside
intended class of those you intended to have the information, its
confidentiality may be lost. That would be the result with a common letter.
Here the circumstances of how the email was further disseminated would
probably influence the result.
In conclusion, there is no harm in including the warning on your email,
though I don't think it will matter unless the content is really
confidential and the error in sending to the recipient excusable. No doubt
we will statutes and cases dealing with this issue very soon. If anyone
knows of any, let us know.