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On email confidentiality

By Lawrence B. Ebert, Esq.

Rebecca J. Foote has an article titled EMAIL, PRIVILEGE, CONFIDENTIAL INFORMATION AND INADVERTENT DISCLOSURES which notes:

No form of communication is completely secure, as each may be lost, intercepted, or inadvertently disclosed. Case law strongly supports the conclusion that, so long as prompt action is taken to assert a claim of privilege or trade secret status, privileged information in an intercepted email or email unintentionally released by a virus sent to its author or intended recipient will be protected from use in evidence and trade secrets retain their legally protected character.

One has:

Some case law takes a ?no waiver? approach. Courts using this approach hold that an inadvertent disclosure will not waive the privilege, based on the premise that waiver requires an intentional relinquishment of a known right. Thus, as inadvertent disclosure cannot be intentional, the privilege is not waived.[xv] Courts which use the no waiver approach have, for example, refused to find waiver where privileged documents, which had been marked as such with tabs that fell off somewhere in the copying process, were produced to opposing counsel,[xvi] and where an attorney accidentally left a privileged memorandum in a box of documents for the opposing counsel to review[xvii]. Courts who utilize this approach also reason that as the privilege belongs to the client and is recognized to protect the client, more than negligence on the part of counsel should be required before the privilege is waived.[xviii]

Recall that an issue of email confidentiality arose in the Poshard saga-->

http://ipbiz.blogspot.com/2007/09/email-confidentiality-issue-in-flap.html

Full post as published by IPBiz on December 09, 2008 (boomark / email).