The Corporate Law Group

Whoops!

Everyone has sent emails to the wrong person, and if you are sending your email to the people you intend to sue beware. But more surprisingly you need to beware if you read the email sent by your future nemesis. In Terraphase Engineering, Inc. v. Arcadis, the court actually disqualified the layers who read a wrongly sent email message. The former employer of a group of departing employees believed the employees had stolen trade secrets and the departing employees thought the employer was interfering with their customers. The former employees sue first. But in preparation for that suit, their lawyer sent an email to an old email address at the defendant. The defendant’s in-house and outside counsel read the email and an attachment discussing their strategy. When the employees complained, the court took their side disqualifying the employer’s lawyers who read the email message, citing a lawyer’s ethical obligation to not read privileged documents. We think there is some moral hazard created here, and the opinion went too far protecting a sloppy lawyer. The message: If you want to disqualify opposing counsel, send them a bunch of secret emails and hope they read one. We say, “Boo.” — Paul Marotta

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