Check Twice Before You Send: New Discoveries Regarding the Perils of “Reply All”

The legal obligations placed on both businesses and individuals are constantly changing. These changes come from obvious sources such as new laws enacted by legislatures and decisions by courts modifying common law principles. A good example is the Massachusetts Supreme Judicial Court’s decision last year modifying the duties of land owners with respect to snow and ice removal. Changes can also result from less obvious sources; for example changes to the rules of civil procedure with respect to discovery of electronic evidence adopted by the federal court and many state courts.

These changes are driven by many factors, including changes in technology and in the experience and knowledge of the general public. Konowitz & Greenberg was recently involved in a case in the Massachusetts Superior Court that illustrates how these changes can occur. In that case, the attorney for the opposing party in a case sent an e-mail to Konowitz & Greenberg and blind copied his client on the e-mail. The client then responded to his attorney’s e-mail—with a response that included arguably damaging admissions—and inadvertently copied Konowitz & Greenberg by mistakenly using the “reply all” function.

Opposing counsel filed a motion to prevent any use of the e-mail in the case, arguing that the disclosure of the attorney-client privileged communication was inadvertent and that reasonable care had been used to protect the privilege. While the court ultimately allowed the motion, it noted the foreseeability of the type of mistake made by the client, and emphasized that attorneys should avoid using the “bcc” function on e-mails, particularly when sending an e-mail to clients. The Court noted that any further “accidents” would result in a waiver of the privilege.

The Court’s decision illustrates how changing technology, knowledge and experience can result in changes in laws and rules that, though basically procedural, can have wide-ranging impacts. Fifteen years ago, it would have been inconceivable that a court would expect attorneys and their clients to recognize the risks of e-mail and “reply all” buttons. In 2010, at least one Court found that these risks were generally known and that whether a waiver of privilege had occurred was a close question. It is certainly conceivable that in another few years a court will find that not only are the risks of “bcc’s” and “reply all” known and foreseeable, but that parties and their attorneys have an affirmative duty to adopt procedures that prevent the type of inadvertent disclosure that occurred in this case.

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