Boilerplate email disclaimers have become so commonplace that many of us don’t even notice their existence. Are these email disclaimers of any effect? One website touts the necessity of these lengthy paragraphs, while The Economist wrote in 2011 that these automatic email footers are both annoying and “legally useless.” So who is correct? As you might suspect since a business lawyer is writing this, the answer is: it depends.
Utilizing email disclaimers to reinforce confidential communication is one use that has shown some evidentiary value. One federal district court ruled that an email beginning with the phrase “PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION” evidenced the client’s “intent to seek legal advice and the client’s belief that he is consulting an attorney, i.e., someone who will keep the communications confidential.” Mattel, Inc. v. MGA Entm’t, Inc., 2010 U.S. Dist. LEXIS 102461, 23 (C.D. Cal. Sept. 22, 2010).
In fact, the downside of not including such a disclaimer may be detrimental. According to one court, the lack of email disclaimer about the confidentiality of a customer list evidenced that the materials were not intended to be confidential. B & F Sys. v. LeBlanc, 2011 U.S. Dist. LEXIS 103957, 77 (M.D. Ga. Sept. 14, 2011).
Authority to Bind a Principal or Employer
A disclaimer of authority of agents or employees to bind their principals or employers appears to have some effect. One court found such to be evidence of an intention not to form a contract where the disclaimer stated that the email “does not in any case constitute a binding offer, acceptance or opinion for [the principal] unless so set forth in a separate document.” McCoy v. Gamesa Tech. Corp., 2012 U.S. Dist. LEXIS 38745, 17-18 (N.D. Ill. Mar. 22, 2012).
Yet another disclaimer that made clear that an insurance agent did not have the authority to bind an insurance company before a policy was issued was found to be effective. Sunny Corral Mgmt., LLC v. Zurich Am. Ins. Co., 2010 U.S. Dist. LEXIS 46679, 7-8 (N.D. Tex. Mar. 31, 2010).
Preventing Parties with Authority from Forming a Contract
A disclaimer may make it clear that contract terms are not set without further action. One federal district court found that an email disclaimer stating that any “price or other contract term contained in this email is subject to approval” prevented the formation of a valid contract by e-mail alone. Dhillon v. Zions First Nat’l Bank, 2012 U.S. App. LEXIS 4605, 2-3, 9 (11th Cir. Ga. Mar. 6, 2012).
However, an email alone was found insufficient to grant a motion to dismiss where the email disclaimer stated “[t]his is a confidential draft and is not for use by any party for any reason.” Blackwater Techs., Inc. v. Synesi Group, 2008 U.S. Dist. LEXIS 2744, 4, 15 (D. Minn. Jan. 14, 2008). Rather, this was found to be a matter best decided on a motion for summary judgment after the facts could be developed in discovery.
Disclaiming Threats of Violence
One family court case spilled over into an email that stated “pay-back is really a b****” and that the recipients “still have a gigantic debt to pay to me, which will be paid no matter what.” Romero v. Romero, 2011 Cal. App. Unpub. LEXIS 8706 (Cal. App. 4th Dist. Nov. 14, 2011). The e-mail concluded with, “Your most determined, unstoppable, and visceral enemy.”
Below that, the email included the following: “DISCLAIMER: Not one word herein should be construed by anyone as meaning violent or threatening intentions, and instead the entire contents is to be taken by the strict literary meaning. There have not been, and will be any elucidated threats of violence or intent, either expressed or implied, within the entirety of this document.”
Unsurprisingly, the recipient of the e-mail sought a protective order. The sender claimed his emails were protected by his First Amendment right of free speech and that the “disclaimer” prevented the emails from being used as the basis for a protective order. The court explained to the sender that his documented threat and harassment of the recipient would not be ignored “by simply putting a disclaimer on it.”
Effective Use of Email Disclaimers
These cases evidence that the effect of a disclaimer will likely depend upon all of the surrounding circumstances, including the disclaimer’s language, the text of the email at issue and the context in which it was sent.
To maximize the chances that such a disclaimer might be found effective, it may be better practice to place it at the beginning, not the end, of an email. However, if one were to do that for all e-mails sent, one might wonder if one really meant for the disclaimer to apply. It might be better practice to use disclaimers sparingly to certain particular emails only, not to every email sent.
Notably absent from these cases is any finding by a court that boilerplate language at the bottom of every email about matters that only pertain to certain emails is of any conclusive effect. Such language is often found in attorney emails relating to confidentiality, formation of an attorney-client relationship, or other matters that are disclaimed in an abundance of caution. While that doesn’t mean a court could not find some value in boilerplate language, the lack of such a case is telling.
Are disclaimers “legally useless” as The Economist reports? Probably not, but their effectiveness may be more limited than some believe.
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