Blackberry Disaster: Protecting the Company's Privilege (Part 2)
This is the second part to a series on Protecting the Company's Privilege. If you missed Part 1 it can be found here. Many Jacksonville Business Lawyers tell their clients that Blackberry devices are invitations for disaster because clients have their guard down. In the past people communicated with a short phone call, in a hallway conversation, at the water cooler. Today in house council and employees often communicate with text messages and emails. Often they are giving business and legal advise to employees. Sometimes both business and legal advise is given in the same conversation.
Only legal advise is privileged and the privilege can be lost if business advise is intermingled with the legal advise. This privilege only protects communications within the United States. In house counsel should be cautious when communicating with employees or offices in other countries. Some countries do not recognize a privilege for in-house counsel.
Some countries like France and Switzerland recognize no privilege at all for in-house counsel and Japan is in between France and the United States.
How can in-house counsel protect their emails?
• Be conscious of when you are giving legal and business advise. Sometimes you may want to send two emails.
• When sending out legal advise make sure its clear that it is legal advise. Start your emails with "You have asked for my legal advise on this issue". Teach your staff not to mass forward your messages, if the message is forwarded to one person to many, the privilege can be lost.
• Educate your staff that email is not destroyed by simply pressing the delete key. Blackberry devices create inadvertent documentation in situations where clients have their guard down. Don't send an email that you would not like made public.
• Selectively use Privileged & Confidential" notations on e-mail communications. This will help in the event you have to argue the meaning in front of a judge.
Continued in Part 3
