We’ve all seen it at one time or another on the emails that come across our computer. A glaring warning statement that reads: “This message and any attachments are intended only for the use of the intended recipient, are confidential, and may be privileged.” Weighty words, but will they stand up in a court of law when push comes to shove? To understand the court’s final verdict about email confidentiality statements, we first need to understand what confidential and privileged communications are and the differences between the two.
Example: The information contained in this electronic mail message, including attachments, if any, is ACME confidential information. It is intended only for the use of the person(’s) named above. If the reader of this message is not the intended recipient, or has received this message in error, you are hereby notified that any review, dissemination, distribution or copying of this communication is strictly prohibited. If you are not the intended recipient or have received this message in error, please notify the sender via e-mail and promptly delete the original message.
What Is a Confidential Communication?
A confidential communication is one between two or more persons who share a confidential relationship or confidential information. Confidential information is only accessible to a limited number of known people. All of the recipients of the confidential information have agreed in advance that the information is restricted and that they’ll keep it that way.
A “confidentiality agreement” may be oral, but should really be in writing. The information must be stored and conveyed in a manner that allows everyone who has access to it to know that the information is classified. That means the confidential information must be kept secured and labeled as such. A great big red "confidential" stamp, like you see in the movies, across the file folder or envelope is normal. Examples of confidential information are client lists, manufacturing techniques and personal employee information.
What Is a Privileged Communication?
A privileged communication is a communication between a person and an advisor or someone in a position of trust. A patient has privileged communication with his physician, a client with a lawyer, and a penitent with his clergy. The privilege is held by the advisor and cannot be breached without permission of the client. The final privilege is the marriage privilege that protects communications between a husband and wife who are legally married as defined by state law. Those four groups of people have privilege nationwide and in all aspects of life.
Some states extend privilege to other professionals, such as accountants and psychiatrists. State privilege is very limited, however. While a lawyer can keep information privileged from the IRS, a CPA cannot. A lawyer and a CPA can keep information privileged from state tax collectors in a state that recognizes CPA privilege. The legal privilege is recognized by the IRS because of federal law recognizing attorney private privilege, but state law privilege for a CPA is not recognized.
Privilege is possessed by the client or patient and cannot be breached by the advisor without permission from the client or patient. Privilege was developed so that someone would have no fear in asking for help, whether it is from their physician, their lawyer or their supreme being. The marriage privilege was to preserve the sanctity of marriage—to make a husband and wife’s communications between them only, not to be heard or seen by anyone else (except maybe the kids in the next room).
Any communication—written, oral or electronic—with any of these privileged parties is lost if a third party learns of the information. The same goes if the information being communicated is confidential. If a passerby hears the conversation between an attorney and his client, then the privilege is lost. Anyone who has a legal interest in a lawsuit could compel disclosure of the communication once the privilege is lost. Once the privilege is lost, the cat is, as they say, out of the bag and it cannot be recaptured.
Courts Rule In
Now that we’ve established what confidential and privileged communications are, how do they stand up to the electronic age? Even if we are very careful with communicating any confidential or privileged information electronically, it still won’t float a boat.
The courts have looked at email and determined that because all email communications are viewed by third parties all of the time, there is no privileged communications in emails. What? Well, it’s not exactly that Big Brother is looking at your email. The point of contention is that any computer between you and your recipient could be looked at by the person in charge of the computer who, in turn, could see your email. Thus, there is no privilege. It does not matter necessarily that no one did look at the email. Just the possibility that someone could look, if they wanted to in the normal course of their day, was enough for the courts to rule email is not privileged. On top of that, the court concluded that you will never know if someone in the chain of computers that processed your email did or did not look.
Because anyone can see an email and any confidential information in it, there is no confidential nature to the communication. Again, once confidential information is exposed to the world, it is no longer confidential and cannot be reclaimed. With the new electronic discovery rules imposed by the federal courts and some state courts, any confidential information may end up in the hands of an opponent because at one time it was communicated outside of your business by email.
Does this mean you should not use email to convey privileged and confidential information? From a purely legal perspective, the answer is, YES, avoid it. You may want to continue to send privileged information around your company’s Intranet or across the Internet, however, be prepared to lose the fight if it falls into the wrong hands. How you actually deal with this issue will depend on whether you are a target of lawsuits, the information you want to convey and the value of that information.
On top of the legal uselessness of confidential and privileged disclaimers in emails, as well as the waste of electronic space, there are some real laughs in some of those disclaimers. Some tell you to fax back to them the information you received…without supplying a fax number. Others tell you to immediately delete the email after reading it. But if you watch any news out of Washington, D.C., you know it takes years for email to be deleted, if at all.
So what does this mean to your emails and the confidential and privileged disclaimers you so diligently place at the bottom? It’s just a waste of time and megabytes. For those in the know, it makes us snicker, first, and then it irritates us. To everyone else, it makes replies that much longer and harder to sort through to find the real meat of the email.
>> The SNEWS® Law Review is edited by Jim Moss, and is the online legal resource center for risk management, insurance and law information serving the fitness and outdoor industries. To learn more and subscribe, visit www.snewsnet.com/lawreview.