[geeks] Email Disclaimers

[Phil Stracchino]

On 07/06/11 18:47, Edward Mitchell wrote:
> The other interesting thing is location of the disclaimer.  If the information
> is really that sensitive, the logical place for the disclaimer is at the top
> of the message, before the privileged content.  Otherwise, in order for a
> regular person to find the disclaimer, they would naturally read the entire
> email first and only thereafter come upon the disclaimer.  By placing it as a
> header instead of a footer (I believe there is software to manage this
> process, since attorneys have deep pockets) you give yourself two options.
> Option 1 is that the recipient is put on notice immediately and can cease
> reading the email and notify the sender (see ABA Model Rule 4.4(b), adopted in
> some form or another in most of the 50 states).

Yup, this makes perfect sense.  But a clearly-boilerplate disclaimer
that the recipient does not encounter until after reading everything
it's supposed to protect - if the recipient even sees it *at all*, as I
have personally seen mail clients that don't display email signatures by
default or that allow signature display to be disabled - is next to
worthless.  It's not so much locking the stable door after the horse has
bolted, as putting a Post-It note on the open door of the empty stable
that says "By the way, this door is locked."


>  Option 2 is that *if* a
> plaintiff argued the disclaimer was the basis for formation of a unilateral
> contract (a stretch, but not impossible on the right set of facts), the court
> could find an enforceable contract against the defendant and award damages for
> any harm caused.

I would think that would be a pretty tough argument to make.  I can't
even begin to imagine the barrel of worms that would be opened by a
legal precedent saying that a single email message can unilaterally
create a contract with an arbitrary, unknown recipient, who was not even
intended to receive it in the first place, and without the consent of
the recipient.


-- 
  Phil Stracchino, CDK#2     DoD#299792458     ICBM: 43.5607, -71.355
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