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.