Thursday, November 15, 2012

Email Caution in the Workplace: Oops

Email has a lot of great advantages - it's a relatively informal mode of communication for which a permanent record can usually be kept.  Entire conversations that used to happen by telephone or in person now occur via email, and there can be no confusion about who said what.

As a lawyer, I am a huge fan of that aspect.

In reality, though, it's a double-edged sword.  It is far too easy for people to hammer off an angry email and hit send, and then regret it later.  Or there are more technical errors, sending it to the wrong person, accidentally hitting "Reply All", etc.  Most people do that from time to time.  Lawyers have to be particularly cautious.  But it happens.

The recent Divisional Court decision in Fernandes v. Marketforce Communications Inc., dealt with just such an "Oops" moment.  There was an email conversation going around in which the company's managers took issue with Fernandes' continued employment, and courted the idea of dismissing her.  The company's director of operations then sent an email, including the past email chain, to the company's lawyers asking for a conference call.

And copied it to Ms. Fernandes.


She immediately tried to 'recall' the email, but that didn't work.  So she immediately sent another email to Fernandes saying that the email had been inadvertently sent but was privileged and confidential, and asking Fernandes to delete it without reading or copying it.

Not so easy to put a cat back into a bag.  Fernandes had read it, she did copy it, and following her vacation advised the employer that she was taking the email as terminating her employment.

The Issue:  Is the Email Privileged?

The employer took the position that the email was subject to solicitor-client privilege, that the disclosure was inadvertent and did not waive privilege, and therefore the email could not be entered into evidence in a trial.

There's a logic to the employer's position.  The email was privileged, and privilege isn't waived by clearly inadvertent disclosure, particularly given the director of operations' immediate attempts to contain the mistake.  However, where preservation of privilege would be 'unfair', the Court can admit the privileged documents anyways.

That's where this case turns:  If you receive and read an email with an internal discussion in management about planning to fire you, it's easy to imagine how such an email would put a chill on the continuation of the employment relationship.  (It would, of course, depend on circumstances.  Dealing with a scenario where the employee had been put on a performance improvement plan, and had been cautioned that her performance still wasn't meeting expectations, then an accidental insight into a "do we fire her" conversation is not only unsurprising but to be expected.  However, in most situations, where the an employee knows that management has already formed an intention to end the employment relationship...the employment relationship is, essentially, already over.)

So, where the contract was effectively brought to an end by an inadvertent disclosure of a privileged document, it would be a travesty to prevent the disclosed document from being admitted into proceedings flowing from the breach of contract.

Of course, the Court isn't yet asking the question of whether or not the plaintiff is right that the document effectively ended her employment, nor does it include the language of the email in the decision.  However, the finding that privilege does not prevent the employee from relying on the email...well, that's likely to force a settlement of the case fairly quickly.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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