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
organization.
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
e-communication generally:
- 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 communication.
- 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.
