Risk-e business of professional emails

Electronic communications have led to a widening range of risks.

Many existing security procedures were developed for a paper culture and are often ill-suited to the new cyberworld of instant written communications.

In a dispute, all parties are obliged to disclose relevant documents.

Applying this duty to paper documents is relatively straightforward but the duty also extends to e-documents, as the High Court had cause to consider in Marlton v Tektronix UK Holdings (February 2003).

In this case, the pivotal issue was whether the defendant had served notice on the claimant by email before a contractual date. The claimant alleged that one of two e-notices relied on by the defendant had never been received and that the other had not been opened until after the contractual deadline.

The Court ordered the claimant to produce all relevant documentation, which included computer records relating to the issue of receipt or non-receipt of emails. This could entail having to locate and disclose records from any hard disks controlled by the claimant, any back-ups, and any servers over which the claimant had power or control.

The disclosure may have to be monitored to ward off commercial threat.

It is not uncommon for firms to be sued by a rival business which aims is to use the proceedings to force disclosure of sensitive information.

Increasingly, email is used to communicate between firms and clients.

While this can enhance business relationships, it is risky and client confidentiality can easily be breached.