BY JUDGE DANA SENIT HENRY (RET.)

T

he simple fact that almost everyone has access to some

sort of electronic mail capability causes us to take a lot for

granted. While most e-mail users are not concerned about

the electronic record they have created, it can serve as a

critically important defense for business transactions, if

properly managed.

l

I was asked recently by a group of companies to provide some

insight as to how e-mail may be viewed in a dispute resolution

process. With my background as a mediator, arbitrator and judge, I

am able to offer a perspective that may be helpful, particularly to

organizations struggling with high errors and omissions (E&O)

insurance costs. Common to insurance agents and brokers, this is

also a challenge in the medical and legal communities.

First, let’s focus on an everyday problem within the insurance

industry. For insurance agents and brokers, there are significant (and

potentially costly) issues if an insurer claims they never received an

endorsement or that an underwriter failed to bind the coverage that

he or she received by e-mail.

In a dispute resolution situation, this issue tends to evolve into a

“he said, she said” match. For example, the claims may go like this:

“I sent it at 3:00 p.m.” The reply comes back: “We didn’t get it.

Prove that you sent it!”

Few business people realize that standard e-mail provides little

evidentiary value, leaving you and your firm exposed.

In the case of a dispute over content, timing, sending or receiving

an e-mail, the archiving of that e-mail in electronic or printed form

provides very little protection after the fact. With two clicks of the

mouse, one could change anything in a standard e-mail and repre-

sent it to be the original e-mail. Therefore, it is important to consid-

34

ASCnet

Quarterly

2ND QUARTER 2006

P

ro

te

c

te

d

o

r

P

ro

te

c

te

d

o

r

Few business people realize

that standard e-mail

provides little evidentiary

value, leaving you and your

firm exposed.

Are You Legally Protected from E&O

Exposure When You Send an E-mail?

E

x

po

se