No offense, but I’ve always thought that legal disclaimers on e-mail messages are silly. And disclaimers on messages sent to listservs are just plain dumb.
The Dallas Morning News had an interesting column yesterday about such disclaimers, and how they may be ineffective. Here are excerpts.
Do you protect your e-mails with a disclaimer at the bottom stating that your messages contain confidential information meant only for the intended recipient?
Those disclaimers usually threaten – nicely, of course – that to spread any of the information is “prohibited” and “may be unlawful.”
Well, think again, warns Peter Vogel, a partner with Gardere Wynne Sewell LLP who teaches Internet law. Slapping disclaimers on every e-mail may dilute their legal effectiveness.
“The prophylactic view of the world is that if you put a disclaimer on everything, then when you actually need it, it’s there,” says Mr. Vogel, who teaches law of electronic commerce at Southern Methodist University’s Dedman School of Law. “Actually, the opposite is true. If you put it on everything, what you’re really saying is nothing is important or protected.”
I get e-mails all the time warning me that if I was supposed to get the message, I shouldn’t share the information. And if I got it by accident, I should forget I ever saw it.
That’s quite an assumption, given that I’m a newspaper columnist.
My most ludicrous experience was when one of the world’s largest corporations attached a for-your-eyes-only warning to an official statement that it knew I was going to publish.
That got me to thinking about what legal ramifications these disclaimers actually have.
Darn few, says Mr. Vogel. Most of the time, you can dismiss them as meaningless. “You can only be ‘prohibited’ by contractual agreement, if one exists, or some statute, but you have to be told which statute applies. Otherwise there is no means to enforce.”
So how did these things become so prevalent?
Mr. Vogel asks me to remember the dawn of the Fax Machine Age – knowing I was around back in the ’70s.
When lawyers started faxing documents used as courtroom evidence, they added a generic disclaimer to protect attorney-client privilege.
E-mail started showing up as trial evidence in the 1980s but became the way of the world in the mid-1990s. The problem of protecting attorney-client privilege resurfaced.
“So the American Bar Association came up with recommendations for lawyers’ use to protect privilege and confidentiality,” he says. The judge would say the privilege was intact if you had used the magic words.
Many lawyers – if not most – add disclaimers at the bottom of every e-mail, he says.
But not Mr. Vogel: “I selectively add them only to things that truly have attorney-client privilege.”
Why?
“If I send an e-mail with a disclaimer to an opponent in a lawsuit, there’s obviously no privilege or confidentiality associated with the correspondence,” he says. “Doing this pulls into question the privilege protection of every related communication.
“If I were representing you and trying to get privileged denied, I’d say, ‘This has no meaning because they attach it to everything.’ ”
Then it becomes a judge’s call.
“Judges are not trained in this stuff. So they use their best judgment to decide whether someone intended to protect a trade secret or attorney-client privilege – or whether it’s public information that might just as well be on the front page of The Dallas Morning News as anywhere else.”
One sound use of disclaimers is to protect trade secrets, Mr. Vogel says. But make sure that you spell out the statutes you intend to enforce and that you really are protecting intellectual property.
But there’s an even more critical point about e-mails that attorneys and businesspeople should consider, he says. Often the wisest protection is not to send your message as an e-mail in the first place.
“You have to assume that every e-mail that you send might wind up in litigation,” Mr. Vogel says, using Bill Gates as a classic example.
“In the U.S. antitrust case against Microsoft, David Boies took Gates apart because of his e-mail that said the competition needed to be destroyed,” Mr. Vogel says. “Gates didn’t need to say that in an e-mail. He could have picked up the phone and told that to whomever he wanted.”
You should assume that anything you put in an e-mail is going to be seen by a jury, Mr. Vogel says.
“If a jury hears something once, they may or may not believe it. If they hear it a second time, they start believing it’s possible.
“But if they see an e-mail that’s the size of a wall in a courtroom, they absolutely believe it’s true.”
