It would be a gross understatement to say that email is the medium of choice for business communications in the not-so-new millennium. According to The Radicati Group, about 29.4 billion emails (not including spam and viruses) were sent per day in 2010. Properly used, email is an extremely effective and efficient way to request and share information. Improper or inadvertent use can lead to unintended and, in the legal realm, potentially devastating consequences.

Consider the following scenario: a defense attorney sends an email to plaintiff’s counsel, with a “bcc” to his client as a seemingly effective way to keep the client informed of what is transpiring in the case. The client replies to the email with a response that is clearly intended for his defense attorney, but inadvertently uses the “reply to all” function of his email system, thereby sending his response to opposing counsel as well as his own attorney. Defense counsel notices his client's mistake and asks plaintiff’s attorney to delete the email. Instead of deleting it, plaintiff’s counsel submits the email as an exhibit to a motion for summary judgment. This is precisely what happened in Charm v Kohn, a 2010 Massachusetts state court case. Superior Court Justice Judith Fabricant ultimately denied the plaintiff's motion and precluded further use of the email, but warned that “Kohn and his counsel should not expect similar indulgence again. Reply all is risky. So is bcc. Further carelessness may compel a finding of waiver.”

Another risky feature that is standard to most email systems is the “auto-complete” function. In theory, this tool is intended to save users time by suggesting or inserting recipient email addresses as users begin to type them in the “to,” “cc,” or “bcc” fields of an outgoing message. In reality, these fields are often populated with the addresses of unintended recipients, causing the sender to misdirect confidential or privileged information.

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