Email Disclaimers: Recipient Beware

February 2, 2014

Email correspondences have become the norm in the legal world to exchange written communications with clients, opposing counsel, and governmental entities. In doing so, however, there exists the risk of inadvertent disclosures. As such, it has become common practice for senders to institute an automated disclaimer at the bottom of each email indicating that the communication may contain confidential and privileged information, and that if said email is received in error, it should not be read or copied, and the recipient should notify the sender immediately of same. See R. 4-4.4(b), Fla. Rules of Ethics.

However, what legal implications does such disclaimer really have? For starters, it is important to note that emails sent to governmental agencies may be automatically deemed a public record.  Although it does not appear that courts have directly addressed the particular issue of the enforceability of an email disclaimer, general contract law leads us to believe that the answer is that such disclaimers are not enforceable. In order to form contract, there must be an offer, acceptance, and consideration – simply put, both parties must agree to the terms of an agreement.

Pursuant to the contract formation, an email disclaimer would generally not be legally binding. More specifically, while an email disclaimer seeks to establish an agreement between the sender and recipient, thereby giving rise to a duty of nondisclosure, the act of receiving a message does not, in and of itself, give rise to an acceptance and agreement to keep the email contents confidential.

 While it is certainly unclear the extent to which disclaimers are enforced, email disclaimers in the legal world do serve an important purpose. Specifically, courts have considered email disclaimers in determining whether the content of an email should be deemed privileged communications. Diodato v. Wells Fargo Ins. Servs. USA, Inc., 2013 WL 3524829 (M.D. Pa. July 11, 2013) (finding that emails which carried disclaimers identifying the communications as confidential were protected by the attorney client privilege).

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