Evidence: What Does An E-Mail Disclaimer Really Do for You?

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I always read e-mail disclaimers declaring that the mail is protected from unauthorized use by “attorney-client privilege” and as “work product”, but I always wonder a bit whether the blanket use of such e-mail disclaimers makes any real sense. Federal Rule of Evidence 502 provides some protection against waiver of attorney-client privilege in federal proceedings for the inadvertent disclosure of privileged materials and addresses burdens imposed by relatively new technologies such as e-mail. In a decision of the Washington Court of Appeals in Sitterson v. Evergreen School Dist.No. 114, (Div. II, 11/25/08) discusses a need to apply a ‘balanced’ approach in analyzing claims of waiver of the attorney-client privilege when privileged documents are allegedly disclosed in an inadvertent manner adopting a test applied in Alldread v. City of Grenada, 988 F.2d 1425 (5th Cir. 1993). The Alldread test looks at five factors including (1) the reasonableness of precautions taken to prevent disclosure, (2) the amount of time taken to remedy the error, (3) the scope of discovery, (4) the extent of disclosure, and (5) the overriding issue of fairness. Id. at 1433. According to the Washington Court of Appeals in Sitterson the Alldread ‘balanced’ approach is flexible, taking into account the principles underlying the attorney-client privilege and the realities of modern litigation. The Court in Sitterson reasoned that the Alldread test would continue to provide incentives for attorneys to protect confidential communications with their clients, but that it also recognizes that truly unpreventable and inadvertent disclosures can occur at great cost to the client’s interests especially given modern forms of communication and document handling.

But getting back to our original subject, there is the position that the constant and non-purposeful use of e-mail disclaimers may actually work against the attorneys that employ them. For example, the following case cite and analysis from Eric Cooperstein of Lawyerist.com:

“In Scott v. Beth Israel Medical Center, Inc., 847 N.Y. 2d 436, 444 (2007), the court refused to find that a series of e-mails were privileged just because they contained a disclaimer that was found in every e-mail sent by the plaintiff.

Lawyers are also training the world to ignore disclaimers and privilege warnings, which is precisely what we don’t want people to do. Appropriately used, disclaimers may allow lawyers to rescue misdirected e-mails that were sent to other parties and preserve the client’s confidentiality, particularly in close cases in which the confidential or privileged nature of the e-mail is not clearly apparent on the face of the e-mail. Those disclaimers should be sparingly used, appear at the beginning rather that the end of the e-mail, and only state that information in the e-mail is confidential or privileged when it truly is. That way, unintended recipients might really sit up and take notice when they see “confidential and privileged” declared in an e-mail.”

Mr. Cooperstein’s argument against the automatic attachment of e-mail disclaimers seems to make some sense. Is this much ado about nothing or should attorneys selectively include or omit disclaimer(s) in e-mail giving consideration to the content, purpose and positioning of them in light of the subject of the message and document(s) transmitted?

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