In his article "Crafting Effective E-Mail Disclaimers: Transform your message footer from mere annoyance to pragmatic e-discovery tool",  Joseph Howie highlights the pitfalls of poorly worded, auto-generated  footer disclaimers on emails from attorneys.  He raises some excellent food for thought like, do lawyers necessarily want to assert a claim of privilege as to every communication from the law firm, including food orders to the corner deli? Is your disclaimer/notice worded such that it specifies an intent to be transmitted to the "intended" recipient, so simply the recipients identified in the email? Does the notice cover attachments to the email? And how does one prevent misdirection of emails in the first instance?

All good points. As to the latter, we would add two preventative measures to Howie's "best practices" list: whenever possible, remove from your email address book the names of adversaries and adverse counsel that duplicate or are sufficiently similar to client or colleague names so that auto-population of the "to" field is less likely to be inadvertently incorrect.  Also, configure your firm's email system, and to the extent you can influence them, your client's, such that they provide a warning message when "reply to all" is selected  by the responding party.

And while we're on the topic, note that other risks abound in this area.  There is no question that some traditional practices from the paper era don’t translate well to the world of e-communication. And some are downright dangerous.  Take blind carbon copying.   Back in the day, attorneys would often “bcc” their clients on hard copy correspondence to adversaries, an efficient and relatively safe means of keeping the client apprised.  No longer in the age of email, where the ability to instantly respond invites quick, at times reactionary, replies that can easily fall into the wrong hands, with potentially devastating consequences.

Such was the case in Charm v. Kohn, 27 Mass. L. Rep. 421, 2010 Mass. Super. LEXIS 276 (Mass. Super. Sept. 30, 2010). In that case, defendant Kohn’s counsel sent an email to plaintiff’s counsel, with a copy to co-defense counsel, and a blind copy to Kohn. With the intention of communicating with his counsel only, Kohn inadvertently responded to the email using the “reply to all”  function. This circulated his otherwise privileged communication to all recipients of the original email-- including opposing counsel.  Minutes later, Kohn’s counsel realized what happened and emailed opposing counsel demanding that Kohn’s email be deleted. Opposing counsel declined, and defense counsel did not raise the issue again until the summary judgment stage (at which time plaintiff advised the court that this type of careless transmission had happened another time, even earlier in the case).

Distinguishing this case from the “usual scenario”-- in which privileged documents are inadvertently disclosed in the context of voluminous document productions-- the court addressed whether defendant and/or his counsel took reasonable steps to preserve the confidentiality of the communication. While the court found the transmission was clearly a mistake that counsel tried to immediately rectify, it also warned that blind copying one’s client on a email sent to an adversary “gave rise to the foreseeable risk that [the client] would respond exactly as he did.”  It also did not help that defense counsel left the matter unresolved until the summary judgment motion. After struggling with the issue, the Court erred on the side of protecting the almost sacrosanct attorney-client privilege, holding that, “[o]n balance, and perhaps with some indulgence for human fallibility,” defendant satisfied his burden of showing that he took reasonable steps to preserve the confidentiality of the communication.

Less risk-averse practitioners should derive little solace from this outcome. The court was quite clear that the defendant and his counsel should not expect similar judicial “indulgence” if this happened again. The lesson for attorneys: “Bcc’ing” clients should clearly be avoided. The few extra seconds it takes to forward a copy of the email is well worth the resulting peace of mind.

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Categories: Electronic Discovery

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