New Hampshire Chapter of the Construction Specifications Institute

Ever Wonder About those Disclaimers at the End of E-mails?
By Kevin O'Beirne, PE, FCSI, CCS, CCCA, CDT  

​​Most people who exchange e-mails with employees of certain corporations are familiar with disclaimers that often appear at the end of employees’ external e-mails.  The disclaimer used by this writer’s former employer is:
This email and any files transmitted with it are the property of [company name redacted] and its affiliates. All rights, including without limitation copyright, are reserved. This email contains information that may be confidential and may also be privileged. It is for the exclusive use of the intended recipient(s). If you are not an intended recipient, please note that any form of distribution, copying or use of this communication or the information in it is strictly prohibited and may be unlawful. If you have received this communication in error, please return it to the sender and then delete the email and destroy any copies of it. While reasonable precautions have been taken to ensure that no software or viruses are present in our emails, we cannot guarantee that this email or any attachment is virus free or has not been intercepted or changed. Any opinions or other information in this email that do not relate to the official business of [company name redacted] are neither given nor endorsed by it.
If you are uninformed and read something like the above, it almost seems a bit scary.  For example, the above appears to say that, if the e-mail is misdirected by the sender, the unintended recipient somehow undertakes certain obligations and could even be prosecuted if they do not comply with the sending person’s employer’s directives.
What a bunch of hogwash.  Fortunately, many firms still do not have those silly disclaimers in their employees' outgoing e-mails.  This writer’s employer does not use e-mail disclaimers.  Somehow, we have managed to preserve confidentiality when it is truly necessary.
Those e-mail disclaimers, like the doozy presented above, are usually the brainchild of a corporation’s legal counsel.  It’s another case of an attorney’s attempt at protectionism run amok.
Bin mind that lawyers are like any other profession: most them are competent in limited areas and, despite what some attorneys want others to think, they are not all-knowing or expert in all areas.  Like specifiers, lawyers are prone to imitation of others when they are not expert in a certain subject.  So, one lawyer sees that another firm has e-mail disclaimers and figures, "Better safe than sorry" and orders it added to his or her own firm's e-mail system.  Because ”lawyer stuff “is often viewed as akin to voodoo and black magic to non-lawyers, the attorney is rarely questioned on matters like this.
In this writer’s view, it is utterly fruitless and hilarious to attempt to label every external e-mail produced by every employee of an organization—which may have thousands of employees—as "confidential".  Also, in a lawsuit, some of the most-damaging documents that arise during discovery are the firm’s internal e-mails, which almost never have such disclaimers.
As repeatedly expressed to me by a small parade of corporate Legal counsels in the consulting engineering business and construction claims attorneys, , labeling a document as, "privileged and confidential" is supposed to have real meaning and, to have a prayer of such labeling being enforceable in any way, such labeling should be used selectively and sparingly.  In some jurisdictions—so I've been told by some friends who are attorneys—what can and cannot be labeled "privileged and confidential" and be legally regarded as such is limited to individuals who are decision-makers for their organization.  Of course, what applies where you reside, and work may vary.  It is never a good idea to bank on “a friend of a friend of a person I know who’s an attorney said so” when seeking legal advice.
Furthermore, all attorneys with whom I’ve discussed the subject of what it means to label or receive a document or e-mail that is “privileged and confidential” have advised that it has to be directed to or, at the very least, be copied to, the sender’s own attorney ,thus invoking attorney-client privilege, which is a concept well-established and respected in the US legal system.  When one does not follow these “rules”, it may not be enforceable as “privileged and confidential” (or words to similar effect).
Furthermore, if you receive a misdirected e-mail, while it is always best to be ethical and cease reading it as soon as you realize you were not the intended recipient, and to advice the sender of the misdirected communication, it is likely that no such recipient has some type of express obligation to the sender and is obviously not bound by the terms of some demand or contract to which they were never a party and that was added to every outgoing e-mail by the programming of an IT person.
Although strict laws govern the use of documents commended to the delivery system of the US Postal Service, such laws and regulations do not apply to personal or commercial e-mail.
Thus, it is possible that all those disclaimers on almost every e-mail that indicating that the communication is  confidential are probably, well, preposterous.  That, however, does not mean that lawyers cannot still order those disclaimers added to every outgoing e-mail in the hope that the disclaimer holds water if that attorney, on behalf of its client, is trying to enforce the disclaimer in a court or in arbitration.
Perhaps attorneys have such disclaimers added for the same reasons why attorneys often advice their clients to attempt to get others to sign liability waivers.  Anytime a person goes to an attraction that could potentially be dangerous, the operator makes them sign a liability waiver in advance.  When, in years gone by, I used participate in historical reenactments, every reenactment I attended required participants to sign a liability waiver before they were allowed onto the reenactment site.  These things say, in essences, "This is a possibly dangerous activity, so you hereby agree to absolve the event sponsors and operators of all liability if something bad happens to you." 
Attorneys—including the lawyer who was the leader of the first reenactment group of which I was a member—told me, "Those things are useless.  You cannot legally sign away your right to sue in advance."  However, operators of every type of event and attraction that poses a potential danger make people sign them all the same.  The reason is because they are trying to scare you into believing you cannot hold them accountable should something unfortunate happen.  Lawyers know it’s useless, but ordinary people do not, so such liability waivers are used all the time.  In short, they are a smoke-and-mirrors scare tactic, or so I understand.
It is quite possible that e-mail disclaimers are like signed-in-advance liability waivers.  Just because a firm’s legal counsel decides to imitate many other firms in America and orders the IT department to add e-mail disclaimers to the outgoing e-mail does not necessarily mean they are enforceable or do any good at all.  They can, however, serve to scare the unwary and uninformed.  While some adventurous lawyers may even, in some cases, try to demand compliance with those canned e-mail disclaimers, just because a lawyer gives you a talking-to or sends you a stiffly-worded notice does not necessarily mean that what they’re demanding is enforceable.  While it is never a good idea to ignore such demands from someone else’s legal counsel, it is also unwise to panic until you have conferred with your own attorney.  Remember, what may and may not be considered "confidential" and by whom is subject to state laws. 
If the average person thinks that an e-mail has been labeled as confidential, chances are the sender’s attorney has achieved most of what he or she intended by adding the disclaimer in the first place. type of scare tactic.
I suppose it does not hurt to try to say, "This communication is intended for the recipient only, and others who happen to receive it should not feel the right to forward it to anyone they want," but perhaps that's too easy for non-attorneys to understand, and it is better—to the sender’s lawyer—if we're all kept more in the dark and a little bit scared.
In the end, it is always wise to (1) write all e-mails and other written communications as if they would someday be read by a judge or arbitrator; (2) be professional and proper in all forms of communication; (3) understand the labeling of documents as “privileged and confidential” and comply with the advice provided by your legal counsel; and (4) to act ethically and properly in all matters, especially those related to the practice of your profession.
Copyright 2019 by Kevin O’Beirne.  Used with the author’s permission.
The content of this article is solely the author’s work and should not be attributed to any other individual or entity.
The author of this article is not an attorney.  For more information on this topic, readers should consult with their legal counsel.
Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 30 years of experience designing and constructing water and wastewater infrastructure for public and private clients.  He is the National Manager of Engineering Specifications for HDR, a global engineering and architecture design firm.  He is a member of CSI’s MasterFormat Maintenance Task Team and is the certification chair of CSI’s Buffalo-Western New York Chapter.  He is an ACEC voting delegate on the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY rea.  Contact: [email protected].