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By now, most firms have put into place written policies on email use. Usually such policies restrict what can be communicated through email, include the firm’s right to monitor email messages, and set up a system for the preservation and destruction of email communication. But the dangers of email and other electronic communication tools continue to cause problems.
Protect Your Confidential Communication
Email has been used to establish liability for defamation, invasion of privacy, interference with contract, infringement on intellectual property rights, negligence, and breach of contract. Email may help firms run efficiently, but it can also be self-incriminating.
Often poorly written and broadly distributed, email may disclose confidential information, provide evidence of unmet contractual obligations, or show the assumption of a responsibility. Email needs to convey information concisely but with appropriate background information so that the meaning cannot be misconstrued, and it needs to be treated as any other communication that could be used in litigation.
Any project-related communication should be preserved, usually in hard-copy form. Information from a client or design professional should be properly documented, and any information provided to another party should be carefully developed and edited. As with all communication, email should not speculate, state an opinion as a fact, or use language that is easily misinterpreted. Some firms use “keyword” identification software to catch inappropriate phrases or words before email can be sent.
In addition to written policies that employees acknowledge in writing and are expected to follow, firms must address the issue of document retention and destruction. Deleted email often remains in existence on a server or back-up tape, and forensic information specialists have ways of retrieving emails thought to have been destroyed. Some email, of course, should not be destroyed; archive systems can store important communications with clients or others in the design and construction process.
Prepare for When a Claim Occurs
Communication procedures and documentation efforts need to be followed. But if a claim occurs—or even if there is just a suggestion that litigation may be expected—it is too late to remedy lapses. Documents, including electronic documents such as email, must be preserved if they are relevant to a dispute. Even if a company’s policy would normally be to destroy the electronic or hard copy of a communication, destroying relevant documents is called spoliation of evidence and is subject to court sanctions.
Preserve the Attorney-Client Privilege
New communication devices are making interactions between attorneys and clients faster, easier, and possible anywhere, at any time. But the use of email raises new risks and complex challenges for protecting the attorney-client privilege. The privilege requires a reasonable expectation of confidentiality between an attorney and the client during communication. However, such an expectation may not be reasonable when the modes of communication are vulnerable to outside scrutiny.
While substantive emails to and from a firm’s attorney are not subject to discovery, they should be clearly identified as being “Privileged and Confidential: Attorney-Client Communication” and should specifically ask for the attorney’s guidance.
Even what would seem to be privileged communication can be imperiled by improper procedures. One of the most common methods of destroying the privilege is the forwarding or “cutting and pasting” of electronic communications that contain information that otherwise would be protected.
The concepts of confidentiality and privilege are challenged by electronic communication. Firms should be careful in any communication with an attorney. Once information loses confidential status, it may be impossible to prevent its use against the firm. Before sending information, make sure the attorney has commented regarding the attorney-client privilege and confidentiality in electronic communication.
Schinnerer's Resources
Policyholders can access our Management Advisories for more information on electronic communications.
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