Beware the Evolving Ethics of Reviewing E-Mails

By now, most people have had the unfortunate experience of inadvertently sending an e-mail to someone who was not the intended recipient. Often this is simply embarrassing or annoying, such as when reply all is used instead of reply . But when attorney-client communications are inadvertently sent by counsel to someone other than the client, the situation can be significantly more complicated.

A recent decision from the U.S. District Court for the Northern District of California serves as a cautionary tale to anyone who receives misdirected e-mails like these, and the message is simple: Read at your own peril. In that case, Terraphase Engineering, Inc., et al. v. Arcadis, U.S., Inc. , the court took the extreme step of disqualifying defendant's in-house and outside counsel for their handling of an arguably privileged e-mail that was unwittingly sent by the plaintiffs' counsel to the defendant.

The underlying dispute in Arcadis was a relatively common one. A group of employees left their former employer to form their own competing company, and relations between the two soured quickly. The former employer, Arcadis, believed that the former employees had stolen trade secrets before they left, and the former employees believed that Arcadis was threatening potential clients with litigation if they did business with their new company. The former employees eventually sued, and Arcadis countersued. What makes the case interesting is what happened next, and the chain of events that led to Arcadis' in-house and outside counsel being disqualified from the litigation.

As might be expected, just prior to filing their lawsuit, the plaintiffs' attorney sent an e-mail to his clients to discuss strategy. The e-mail also contained an attachment that, according to the former employees, included "Plaintiffs' privileged recitation of background and comments to and from legal counsel." Unfortunately for the attorney, however, the auto-complete function on his e-mail system -- the feature that inserts saved e-mail addresses as soon as you begin entering a recipient's name -- mistakenly entered an old Arcadis e-mail address for one of the employees. As a result, the e-mail and the attachment went directly to Arcadis, which had been monitoring the plaintiffs' e-mail accounts ever since they "abruptly" resigned from the company.

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Source: law.com
By: Peter J. Gallagher