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Feb 03, 2014

Email impairment: A potentially harmful condition

By: Paul Ebeltoft

You get an “out of office reply” that says, “I will be gone from August 31 to September 7. If this is an emergency, please contact …” The trouble is that you sent your email on November 15. Is the out-of-office responder email impaired?

You are at your office. You get an email from a female colleague, sent to your company’s listserv, trumpeting a new idea and asking for feedback. A few moments later, you receive another email, this time from a male colleague saying, “I long for an in depth, no-holds-barred, meeting with you. How about tonight? 6:00 PM at our favorite place?” Sure enough, this amorous co-worker hit “reply all”. Is he email impaired?

Stories about funny, embarrassing and just plain stupid email blunders are everywhere. Don’t let their ubiquity make you complacent. Email practices can have real-life legal consequences, and I am not talking about the divorce actions that some intemperate “reply-alls” have caused. I am talking about matters of legal and economic concern to your business.

When emails attack!

Scenario One: Let’s say that your company has a problem with an outside vendor. You are asked to obtain advice from your company’s lawyer. You email her, outlining the facts. You do as all good clients do, you tell all: the good, the bad and the really bad. Your lawyer responds with advice, suggesting that you communicate in writing with your vendor conveying your company’s strongest position. Your lawyer proposes the language to use. You like what the lawyer proposes. You cut the lawyer’s other comments and her signature line, you insert your signature and you forward the email to your vendor. Have you ever done that or something like it? Did you ever forget about the email string that you also inadvertently sent to your potential adversary? This practice is more common than you might think as the press of business makes email shortcuts the norm.

Scenario Two: “I don’t do that,” you say. Okay. Have you ever emailed an MSWord document to a customer that is the product of much in-house revision and much comment from outside legal counsel? Perhaps the document circulated up and down the corporate ladder and, at one time, contained comments that expose your company’s “bottom line proposal”. What did you do to scrub all the revisions and comments from the document you sent?

Putting aside the customary courtesy of sending the document in MSWord to enable easy editing, a standard operating procedure has been to convert the document to PDF format. A well-known electronic communications authority, the National Security Agency (NSA), warns that this is not good enough. “Despite this common use of PDF documents, users who distribute these files often underestimate the possibility that they might contain hidden data or metadata.” The quoted NSA document, while now outdated, proposes two sanitization processes that some consultants believe will still work with today’s newer program versions. It will be worth your time to discuss metadata-scrubbing techniques with your IT department and to implement some of the basics.

Scenario Three: Those of you who work with lawyers know that, beyond competent and timely representation, your lawyer owes you the duty of confidentiality. What you communicate to your lawyer is to stay with the lawyer unless you surrender the privilege. Email communications can easily blur the line of what you are telling to whom. Consider this common situation. Your lawyer is Lawyer A. Opposing counsel is Lawyer B. Lawyer B sends Lawyer A an email copying your adversary, lawyer B’s client. Lawyer B also copies his legal assistant and two associate lawyers. Lawyer A responds to all, but includes you in a cc of the email. He also includes two of his associate lawyers and his legal assistant. You now have an “informal listserv” of eleven people. You want to reply to your lawyer, but don’t have the addresses of everyone in Lawyer A’s office who are in the loop. You hit reply all, and remove the names added by Lawyer B, but you miss one. Your response is an inadvertent waiver of the client-lawyer privilege.

Who set up that situation? Lawyers B, by adding in everyone in the first communication, signaling a desire to have Lawyer A respond to everyone? Or did Lawyer A, your lawyer, create the problem by his response that included you and three others in his firm, signaling to you that others are to be included in the communications loop. Was it your fault for not being careful?

Surprisingly, there is not a lot of guidance to answer this question. The North Carolina State Bar Association has tried. It opines that it is “advisable that a lawyer sending an electronic communication, who wants to ensure that his client does not receive any electronic communication responses from the receiving lawyer or parties, should forward the electronic communication separately to his client, blind copy the client on the original electronic communication, or expressly state to the recipients of the electronic communication, including opposing counsel, that consent is not granted to copy the client on a responsive electronic communication.” To protect you from making the mistake that you did, however, you and your lawyer should talk first about how you wish to communicate in these situations.

Scenario Four: What some companies do not realize is that an inadvertent “reply all” can unleash an email storm that could clog your system and bring effective email commerce to a halt. The Wall Street Journal published an example of an employee who accidentally sends an email response to a company listserv of 5,000 people. 3% of these people, only 150 people, known as the “opt-outers” hit “reply all” asking to be removed from the listserv. This generates 755,000 emails. Then 1%, 50 people, who got the original email and the opt-outers email don’t want to be left behind, (these are called “the sheep”). The sheep hit a “reply” all request to opt out. The email stack increases to 1,005,000. Enter “the heroes”. They want to remind everyone of the problem of hitting “reply all”, and they do that by hitting “reply all”. If there are 50 heroes, the email stack grows to 1,255,000. Now come the people who consider themselves smarter than all those “idiots” who have pressed “reply all’. There are 25 of these. They wish to tell everyone who has responded how stupid they are. They hit “reply all” and the total emails generated hits close to 1.4 million.

But, you say, “I have only 50 people on my company’s listserv.” Even so, this scenario yields 13,800 unwanted and unproductive emails in your company’s inbox.

What is the HR takeaway?

Typically, HR professionals are “receive sites” for all kinds of electronic communications. You may be in the best position to know whether someone in your company is email impaired. As a part of new employee orientation or of ongoing training, I suggest that you add a section on the proper use of the “forward” function, the hazards of email attachments exposing sensitive information, and the risks attendant on use of “reply all”. My law firm can provide more case examples to help you do this effectively.

Further, HR professionals are often in charge of company policies. I suggest that you consider adding a few lines to your “computer use” policy. Those lines should state something like:

Employees must make a conscious and informed decision to use the “forward” and the “reply all” features of our company’s email programs. Negligent or inadvertent use of these functions can cause embarrassment, confusion or actual damage to you, to the company and to your co-workers. If possible on the program you use, we require that you customize your tool ribbon to move the “forward” and “reply all” buttons as far away as possible from your other response functions. This does not eliminate all mistakes. Only you can do that by first considering the consequences of what you are doing when you forward or reply to an email.

Whether you wish to make a violation or repeated violations of this policy a basis for discipline is up to you.

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(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the February, 2014 Southwest Area Human Resource Association newsletter.