[geeks] Email Disclaimers
alaric at metrocast.net
Wed Jul 6 18:12:35 CDT 2011
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
Phil Stracchino, CDK#2 DoD#299792458 ICBM: 43.5607, -71.355
alaric at caerllewys.net alaric at metrocast.net phil at co.ordinate.org
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