The following is the first installment of our
"Practical Tools for Business", in which we will explain
how to better protect your business. We invite you to circulate
this and further articles in this series within your
Email is an indispensable business tool. However it can also be a
source of great danger and regret. The following is a useful
reminder of the perils and pitfalls of emails and other means of
Emails are forever. When an email is delivered
from a sender to a recipient, several copies are made and may be
preserved. Even when they have been deleted from an inbox and/or a
smartphone, copies may survive and can often be easily obtained.
This may also be true for instant messages, text messages and other
means of electronic communication.
Emails are discoverable. A party to litigation
or a witness can be compelled to produce emails. Emails can be used
in Court in the same manner as the most carefully drafted letter.
Emails are not subject to any particular privilege; there is no
such thing as "off-the-record email".
Emails can constitute admissions. An email
relating a fact or communication can, in various circumstances, be
put into evidence as constituting an admission of this fact or
Emails can be reviewed by the Court, even if the
communication is alleged to be privileged. Even if an
email is written to or by counsel in circumstances in which a claim
for privilege is asserted, a Court may have the power to review
such email in certain circumstances, including to ascertain if the
communication is indeed privileged.
Your email inbox may not be as private as you
think. Make sure you understand who has access to your
email inbox, and who may be reading your emails. Email security is
not a luxury, it is a necessity.
Think of emails as letters. You should give
emails the same consideration as letters printed on your
letterhead. They can have the same effect.
Do not press "Send" in anger; apply the
24-hour rule. When dealing with complex or emotional
situations, it is often important to wait. Time brings clarity,
calm and perspective. We have the ability to respond to email
immediately upon receipt. This can be a great advantage, but it can
also be very dangerous. An email sent in anger is often regretted,
not only because of its content, but because of its tone. Take a
deep breath, let your anger cool, and take a calm second look. When
in doubt, wait and give yourself time before responding.
Beware of "Reply to All". By using
the "Reply to All" function, you may be sending your
reply to unintended recipients. For example, if your counsel copies
you on an email he is sending to the opponent's counsel, and
you reply to all when writing your counsel, you may inadvertently
send a private communication to the opposing counsel. Before you
hit "Reply to All", carefully review the addressees.
Beware of the chain. People often use
"Reply" or "Forward" when they should be
sending a separate email. In doing so, they often add new
addressees to an existing (and perhaps long) chain of emails. This
chain of emails may contain information an addressee at the top of
the chain should not see. Before you hit send, scroll all the way
down, and make sure you know what you are sending.
Sensitive issues should be dealt with by telephone or
in person. Many people use email as a matter of
convenience. Unless there is a need to state a position in writing
for the record, it is usually preferable to deal with complex and
sensitive issues by telephone or in person. This is particularly
important when dealing with real-time litigation or a situation
where current communications are likely to be relevant to the
litigation and may have to be produced. In these situations, you
have to ask yourself: Do I want the opposing counsel to see this
email? If you hit "Send", this might occur.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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