[Air-l] Legal opinions, please

[Ted Friedman]

I forwarded this question to a friend who's a lawyer; here's her
response:

------------------

I don't know what the actual law on this is; there probably isn't much
as yet, or if there is, there's almost certainly no consensus. However,
I'll bet there are plenty of comparable cases out there on
misappropriated letters, phone messages, etc. Bear in mind that I don't
know the history of that case law, either--it's undoubtedly very long
and tedious, and I don't do litigation because this kind of topic makes
my head hurt. 

With those many lawyerly caveats, though, here's what I think it's
about. These tags are equivalent to the "confidential"-type headings
that lawyers are always putting on their memos and letters. They're all
done with an eye towards any future litigation, specifically some future
battle over admissibility into evidence.  If you can prove that your
e-mail was privileged for some reason, e.g. a lawyer-client
communication (or wasn't privileged but was still confidential for some
other reason, e.g. a "trade secret"), then your opponent will never get
to read it and find out all that confidential information you stupidly
sent via e-mail. Of course, just sticking this tag on won't magically
transform a non-privileged message into a privileged one, although it
can be helpful. Personally, it strikes me that an automatically-added
.sig file doesn't demonstrate much intent to keep a specific msg
confidential, but who knows, some judge may be swayed by it.

As far as actually suing/prosecuting someone who received an e-mail by
accident, it seems to me that you'd have to demonstrate that the
unintended recipient actually did something bad with it--stole your
secret formula, did insider trading, whatever. (The attempt to ban just
reading the thing sounds kind of hysterical to me.) Presumably the tag
would be something you could then point to and say, look, the bad guys
were on notice that this msg wasn't for them! Steve's notion that
there's some kind of finders-keepers loophole for communications
received by an unintended recipient doesn't really bear out, for various
reasons; true, the sender was slack in not getting the address right in
the first place, but the law doesn't usually slam people for that kind
of error.

I recently added my own tag (stole it from a msg I received, in fact!)
after accidentally sending some client info to God-knows-who. My
interpretation of the tag is that it's really a one-shot protection.
Once the intended recipient(s) actually receive the e-mail, it's up to
them what to do with it after that--forward it with their own warning,
or print it out and pass it around, or whatever. The intended recipients
could very easily destroy any future claim to confidentiality themselves
this way (e.g. client gets a message from lawyer, and then client passes
it out to everyone on earth), but I will have done my (admittedly
half-assed) thing to put people on notice. 

This is way more than anyone ever wants to hear about this topic, but
I'm bored with my current work project. It's confidential,
unfortunately...but believe me, it's dull.

-------------------------


Steve Jones wrote:
> 
> A colleague at my university posted the message below recently, to
> which there have been no replies on our local list, so I'm hoping
> that there might be some on air-l who can shed light on his inquiry.
> 
> Thanks,
> Sj
> 
> ----------
> More frequently, email messages have had an attachment at bottom that
> advises the user to "burn this message if it is not for you" or something
> like that. Some even threaten legal action if you read the message and it
> wasnt intended for you. (huh? I really saw one that had that phrase!) Here is
> a milder version, taken from a recent academy posting:
> 
> "NOTICE: This email message or attached file(s) may contain information that
> may be privileged, confidential, exempt from disclosure and protected by
> law.  It is intended for use only by the person to whom it is addressed.  If
> you have received this message in error, please do not forward or use this
> information in any way, and contact the sender immediately.  Because e-mail
> can be altered electronically, the integrity of this communication cannot be
> guaranteed."
> 
> I have been wondering about the actual legal basis for these messages. After
> all, the sender types in the address, the email is sent, and then it appears
> in the receivers email account. It would seem the sender has then
> relinquished control over content. In fact, copying the text above into this
> message seems to be a violation of the NOTICE.
> 
> Does anyone know the actual law here, or why these attachments are appearing
> more frequently now?
> 
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