THE JOURNAL OF EDUCATION, COMMUNITY, AND VALUES
By Leonard D. DuBoff and Christy O. King
Email communications are extraordinarily efficient, whether you are corresponding across town, across the country, or around the world, but, unfortunately, they open the door to many pitfalls. Email users must, therefore, be careful to avoid the problems that can arise from using electronic correspondence.
It is quite common, for example, for people to "carbon copy" (or "cc") others on emails. If your email cc's someone and the primary recipient of the email uses "reply to all," that response will be transmitted to the person you cc'd, even if you were not planning for that person to receive it. To avoid this kind of problem, you should, when appropriate, blind copy (or "bcc") parties instead of cc'ing them.
Conversely, you should remember not to inadvertently reply to all when responding to email communications because that reply will then not go only to the party for whom it is intended, but will also wind up being transmitted to all the parties who received the initial communication.
Email users should check to be sure that an email does not contain the stream of communications between the sender and any others that led to that communication, unless, of course, you want the ultimate receiver to see that email stream.
Many organizations have some form of standard disclaimer at the end of their emails. Frequently, this is automatically inserted by the organization's email program. When emails are exchanged within the sender's office so that a colleague can assist in refining the communication, the program may automatically add an additional disclaimer. When this communication is ultimately sent out, it may have two or more disclaimers stacked up at its end. This will alert an astute recipient to the fact that this communication has been wordsmithed by several people. To avoid this problem, if your organization's email inserts such a disclaimer at the end of outgoing emails, you should delete any disclaimers that have accumulated at the end of the email language.
It is also important to carefully review emails for spelling and grammar before they are sent. In many email programs, spellcheck does not catch misspellings in the subject lines of emails. Also, it corrects only spelling errors; that is, it does not determine whether the word is properly used (for instance, "you" is often typed for "your"). Thus, you may find that words in your email are all correctly spelled, but they may not be used in the proper context or even make sense.
Email users are frequently careless with the subject line of their communication, which typically refers to the first communication. It is rare for recipients who respond to that communication to revise the subject line to reflect the response, even if the actual subject of the correspondence changes. As the stream of emails continue, the original subject line may become less and less relevant to the ultimate communication's content, so it is a good idea to revise the subject accordingly.
When someone receives an acrimonious email or one from someone with whom there is a strained relationship, it is quite common to prepare a vitriolic response, which may ultimately prove embarrassing. It is for this reason that prudent email users will delay sending a response until they have either had time to cool off or can obtain input from colleagues who are more removed from the situation.
While it is important to pay attention to the content of your email and make sure that it effectively communicates just what you want to communicate, you should also pay attention to whom the communication is directed. When, for example, the communication deals with subjects that should be restricted to certain individuals in an organization, care should be taken not to send the email to a general email box. Nor should you send emails to individuals at their work addresses without their express consent, since many companies have policies providing that email in their systems is not private and can be read by supervisors and others in the company. Similarly, sending an email to a family's email address when it is intended for just one of the family members could be problematic.
Autofill, the feature of some email programs that automatically places a full email address in the "To" or "cc" position once a few letters of that address/name are typed in, can also create difficulties. If you are not careful to confirm that the email is actually directed to the right person, then the communication could easily go astray. For instance, you may have read about the lawyer for Eli Lilly & Co. who was trying to email co-counsel Bradford Berenson with confidential information on settlement talks with the government but, instead, sent the communication to the New York Times reporter Alex Berenson [1].
Metadata is another area of concern. Such information, which is invisible but retrievable, is often found in word processing documents and may include details such as editing time, comments, authors and even the edits themselves. If the metadata is something you would not want your recipient to review, be sure to either convert the document to PDF or to use a metadata scrubbing program before sending an email attachment.
Organizations should have email policies in their handbooks covering a host of issues. These would include, among other things, the fact that the organization's computer system belongs to it and emails received on it belong to that organization. Policies should also prohibit the use of profanity and other offensive, embarrassing or derogatory language, as well as all forms of harassment and discrimination. Other issues to cover include a prohibition on sending emails with viruses, worms or the like, or with content that infringes intellectual property or other rights.
Finally, you should remember that merely deleting an email does not expunge it from the system; rather, it remains on the hard drive until a special electronic scrubbing program is used to cleanse the hard drive or until the email is overwritten by other data. Thus, you should be judicious when deciding whether to communicate via email or through another less permanent form of communication.
You should be diligent when using your email system, and it cannot be overemphasized how important it is to carefully read the final version of a communication before hitting send.
Leonard DuBoff is author of more than 20 books on business and intellectual property law. He was a law professor for almost a quarter of a century, teaching at the Stanford and Lewis & Clark law schools. He is the managing principal of The DuBoff Law Group, LLC, which focuses on complex business and intellectual property. Christy King is a member of the DuBoff Law Group, LLC, and editor-in-chief of the firm's newsletter Critical Issues, and coauthor with DuBoff of the Deskbook of Art Law, Art Law in a Nutshell, The Law (In Plain English) for Restaurants and The Law (In Plain English) for Doctors, Dentists, and Other Health Care Professionals. Her practice areas include intellectual property, business and corporate law. For more information and to obtain a copy of the firm's newsletter, see www.dubofflaw.com.
[1] "Did Lawyer's E-Mail Goof Land $1B Settlement on NYT's Front Page?" at www.abajournal.com/news/lawyers_e_mail_goof_lands_on_nyts_fgront_page, 2/6/08; and "Lilly's $1 Billion E-Mailstrom" at www.portfolio.com/news-markets/top-5/2008/02/05/Eli-Lilly-E-Mail-to-New- York-Times?, 2/5/08.
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