The Negotiator Magazine

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Another sad fact of electronic communication concerns the ease with which communicators can flame one another with intemperate comments most would be unlikely to convey in person or on the telephone. Someone receives a communication they find offensive, and they immediately draft a nasty response. If the other side responds in kind, a war of words may develop. If someone conducting e-mail exchanges does not like something said by the other side, they can sit at their computer and type a negative reply. This may make them feel better due to the cathartic nature of their actions. When they are finished, however, they should press the cancel button instead of the send button, and discard the offensive message they have prepared. They can then prepare a more detached and professional response that would be more likely to generate a constructive response from the other party.

One critical risk often ignored by electronic negotiators concerns the possibility they will convey far more information in their electronic files than they intended to convey. As they prepare their proposals, they request input from clients and colleagues. Those persons suggest new language and explain why they are making their suggestions. Once the proposals are reworked and become final, they are sent via e-mail attachments to the opposing side. Depending upon the software used, many of the alternative formulations may be buried in the electronic files as metadata. Knowledgeable computer experts may be able to "mine" the electronic files for such information and obtain comments and changes the sender did not intend for them to view.

The New York Bar Association [N.Y. State Ethics Op. 782 (2004)] and the Alabama Bar Association [Ala. State Bar Disc. Comm. Op. 2007-2 (2007)] have indicated that lawyers have an obligation under the rules governing client confidentiality to use "reasonable care" when transmitting electronic documents to prevent the inadvertent disclosure of metadata containing client confidences. It thus behooves lawyers and others to employ means designed to prevent the unintended disclosure of confidential information when they convey electronic files.

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June 2007