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E-mail blues—and how to beat them - Integrated Technology

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Reprinted with permission of TRIAL (October 2007)
Copyright -- The American Association for Justice
(formerly the Association of Trial Lawyers of America)
Tech Brief
October 2007 | Volume 43, Issue 10
E-mail blues—and how to beat them
Daniel J. Siegel
E-mail has become the default method that lawyers use to communicate both internally among colleagues in a firm
and externally with clients and other counsel. And as electronic court filing becomes more common, e-mail also is
becoming increasingly popular for filing and serving pleadings and other legal documents.
The advantages of e-mail are clear. Delivery is fast, literally instantaneous. By using e-mail, law firms reduce the
amount of formal correspondence they send. Just think how many letters you no longer send because of e-mail and
how much your law office saves on the cost of letterhead, toner, postage, and, most important, staff time.
Obviously, e-mail is a good thing, right? I use it all the time, and the mere thought of going back to communicating
exclusively through snail mail and faxes gives me nightmares. However—and this is a big “however”—every law
firm that uses e-mail to communicate with clients and others must ensure that confidentiality is preserved and that
e-mail is not used inappropriately.
First, your firm must face the reality of the sheer volume of e-mail coming into in-boxes every day. The typical
business user in the United States sends and receives an average of 171 e-mails a day, and that volume is
expected to double by 2010.1 Even more alarming is the daily volume of nonbusiness e-mail. About 23 percent of
the messages in corporate e-mail in-boxes are personal, excluding spam, while spam itself amounts to roughly onethird of all e-mail. That means more than half of all “business” e-mail may not be work-related.2
Second, your firm must be careful with every client’s confidential information when using e-mail. Client information
is confidential, but e-mail communications are not secure. Rather, as one Web site on e-mail privacy notes, “e-mail
is as public as a postcard! Every message you send through the Internet can easily be snatched and scanned for
interesting details by anyone having the necessary know-how. Privacy is virtually nonexistent online.”3
Ideally, attorneys and company employees would never mention anything about clients in e-mail to anyone who is
not entitled to the information. The reality, however, is that disclosures occur. According to one estimate, a law firm
with 25 employees can expect 45 unauthorized releases of private information in e-mail daily.4 Compounding the
problem is the fact that many firms do not have, do not publish, or do not enforce an e-mail use policy for their
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employees.
While there are ways for law firms to deal with the lack of privacy in e-mail, most of the options are not practical,
given the sheer volume of e-mail. For example, there’s no feasible way to encrypt every message so that, if it is
intercepted by a third party, it cannot be read.5 Neither is it practical to use digital signatures, which verify to the
recipient that the file came from the person who sent it and that it has not been altered since it was signed.6
Consequently, most law firms (and, in fact, almost all businesses) ignore privacy concerns and risk the
consequences.
As a prudent attorney, what can you do to avoid these problems?
Set a policy
To start, every law firm should publish official e-mail use policies, which should be distributed and acknowledged
annually in writing by each employee, outlining
z
z
z
z
z
z
z
whether and to what extent e-mail can be used for personal correspondence
how, or whether, documents and other attachments may be appended to e-mail, and what security
procedures must be used to open received documents and attachments
the firm’s official e-mail retention policies
the requirement that employees shall not disclose confidential client or firm information via e-mail
the degree of privacy that employees can expect with regard to their e-mail (usually, none)
how the policy will be enforced
the consequences of violating the policy.
A careful attorney will inform every client about the possibility of disclosure in e-mail communications and allow the
client—in an engagement letter or other document—to choose not to receive communications by e-mail. Many law
firms also include an e-mail disclaimer on outgoing e-mail, but we all know that virtually no one ever reads these
notices. However, these disclosures at least set a minimum standard should confidential or privileged information
go astray.
One source of help for a law firm seeking to create a basic e-mail policy is www.emailreplies.com, which outlines
the issues and concerns that every business faces with regard to e-mail traffic. The Web site also provides a
sample template that a firm can use to create its own e-mail policy.
Deal with metadata
If your firm uses e-mail for sending documents and files, you should restrict what types of attachments you send.
This will guard against the inadvertent release of the metadata that is embedded in many documents, including
those created in Microsoft Word, Microsoft Excel, Microsoft PowerPoint, and Corel WordPerfect.
Metadata, which means “information about data,” may contain your name; initials; company or organization name;
other file properties and summary information; the names of other authors of the document; and information about
revisions, including other versions, hidden text, comments, and the time spent editing the document. This is an
enormous range of information that you probably don’t want to disclose.
For example, I reviewed the metadata in a relatively simple answer to a complaint I recently filed. The results
encompassed five single-spaced pages. The metadata revealed when the document was created, when it was last
saved, when it was last printed, the number of revisions made, the total time spent editing it, and 104 other changes
made from the first to the last version.
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Had the document been e-mailed to opposing counsel in its native (Word) format, he could have run a metadata
program and seen the changes—which, in essence, showed the evolution of my analysis of the legal issues raised
in the complaint.
The most practical way to deal with metadata is to e-mail every document only as a portable document file (better
known as a “pdf” or an “Adobe pdf”). A pdf file retains the appearance of the original document, but virtually all
metadata is removed. Numerous software programs can create pdfs, including Adobe Acrobat (although not the
free version), PDF Creator, and pdf995. WordPerfect has incorporated a pdf creation tool in its more recent
versions.
Law firms simply cannot afford to ignore how pervasive e-mail has become. With prudent policies and appropriate
safeguards in place, you can safely communicate with clients and others by e-mail without breaching confidentiality
and other privacy concerns.
Attorney Daniel J. Siegel is the president of Integrated Technology Services in Havertown, Pennsylvania. He can
be reached at trial@itsllconline.com. The views expressed in this article are the author’s and do not constitute an
endorsement of any product by TRIAL or AAJ.
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Notes
1.
2.
3.
4.
5.
6.
J. Nicholas Hoover, The Problems with E-mail, www.informationweek.com/software/showArticle.jhtml?
articleID=196902129 (citing Radicati Group study)(Jan. 20, 2007).
Radicati Group, Inc., & Mirapoint, Inc., E-mail Security 2005-2009 (Sept. 2005)(summary report on file with
the author).
Glastonberry, Inc., E-mail Privacy, www.emailprivacy.info/home.
Hoover, supra n. 1.
In addition to the expense involved in encrypting e-mails, there is also the reality that users will not bother to
encrypt e-mail because of the volume of their e-mail communications. Plus, recipients would need to have a
key to decrypt the e-mail; imagine giving a key to every recipient or client and then imagine having unique
keys for each client.
See Rebecca Porter, Do Electronic Signatures Mean an End to the Dotted Line?, TRIAL 52 (Sept. 2003).
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