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FREQUENTLY,
LEGAL TRANSACTIONS are handled electronically, including document filing
and correspondence with clients, counsel, and opposing counsel. For
the most part, electronic messages and attachments are accorded the same
legal status as print documents. (Some, such as wills, are excluded.)
The laws behind legal use of electronic documents include the Electronic
Signatures in Global and National Commerce Act (E-SIGN) and the Uniform
Electronic Transactions Act (UETA), which the National Conference of
Commissioners on Uniform State Laws (NCCUSL) approved in 1999.
Like paper
documents, electronic documents can be lost. A paper document sent via
the postal service (or Federal Express or UPS) can get lost or
misdelivered, or an intended recipient can simply deny receipt.
Documents sent by e-mail can suffer the same fate. The intended
recipient of an email message may never receive it because it was
diverted by a spam filter or the sender mistyped the recipient’s e-mail
address. Because of this, showing that an e-mail message is in the
sender’s Sent folder cannot serve as proof that the recipient received
the message.
Even if a
recipient admits or a sender proves receipt of a message, the sender
still has the problem of proving the content. E-mail recipients can
alter the content of a message and then dispute the sender’s account of
its content. As a partial countermeasure to false or erroneous claims on
nonreceipt of e-mail messages, many e-mail programs allow senders to
choose a delivery receipt option. This results in a recipient’s
receiving a message along with the e-mail itself that requests delivery
receipt. The pop-up window may say: “John Doe has requested that a
receipt be sent to John Doe that this message has been read. Do you want
to send a receipt?” The recipient can answer no but still read the
message, so the delivery receipt option may not help when someone denies
receiving a message. Even if the recipient replies with a yes, this
proves only receipt, not the content of the message. Merely allowing the
recipient to act or not is no way for a proactive lawyer to protect a
client.
A Solution
Fortunately, a frustrated message sender has already invented a
solution to the problem of guaranteed electronic message delivery.
In 2000, a consumer sent an e-mail message to the Palm computer
company to cancel his order. Nonetheless, the Palm device arrived in
the mail. When Palm’s customer service claimed it never received his
e-mail message, the customer began to think of a method to prove
receipt of email messages. That consumer later cofounded RPost, whose software, now used by
numerous government agencies, companies, and law firms, creates a
process by which sent messages can be registered to show legal proof
of receipt of a specific e-mail message and any attachments. In
addition, RPost can be used to prove the content of the message and
attachments. This
shifts the burden of proof to the receiver if the content of the
message or attachments are in contention or if the recipient claims
not to have received the message at all.
An RPost plug-in must be downloaded and installed to begin sending
registered messages. The Windows-based plug-in installs very quickly
and works with Outlook, Lotus, Groupwise, AOL mail, Yahoo mail, and
other Web-based mail applications. When we installed RPost, we had
some problems on our computer, but after some troubleshooting we
discovered that our antivirus software conflicted with RPost, and we
were able to work around the conflict. There are no known conflicts
between RPost and and the commonly used Norton or McAffee antivirus
software.
When sending an RPost-registered message, the sender can choose
whether to have an RPost banner appear on the message to show the
recipient that the e-mail message is “registered.” The banner can be
displayed in various languages or left off completely. Some
attorneys leave the banner off when e-mailing messages to their
clients to avoid making them uncomfortable. Some clients might even
mistakenly think they are being served. Other lawyers choose to
inform their clients in advance that they send all e-mail
registered, as a matter of course, for everyone’s protection.
These RPost notifications operate differently from the receipt
functions native to standard e-mail programs. RPost proves delivery
without requiring any affirmative action by the recipient. Within
minutes to at most a few hours, RPost sends the sender a Registered
Receipt that appears in a new Registered folder. The folder is
automatically created by RPost the first time a registered receipt
e-mail message is received from RPost. The receipt shows the path of
the registered transaction, serving as proof of the delivery and
message content by displaying:
• The address that the message was sent to.
• Whether the message contained an attachment.
• A time stamp showing when the message was sent and delivered.
The stamp shows the sender’s time and the coordinated universal time
or UTC, which corresponds to Greenwich Mean Time, or GMT.
• In some cases, a time stamp showing when the e-mail message was
opened. This feature depends on the recipient’s e-mail server.
Legal proof of delivery, however, is not thwarted just because a
recipient’s mail server does not have the ability to show whether a
message was opened. There is no requirement that a sender prove that
a recipient opened a hand-delivered letter, and there is no
requirement that a sender of an email message prove that the
recipient opened the message.
Lawyers concerned about confidentiality will be pleased to know that
RPost does not store the content of user e-mails and attachments on
its servers. Instead, each message (and attachment) is compressed
into a file that is locked and returned to the sender as part of the
Registered Receipt. If a dispute arises between two parties as to
the content of a sent RPost-registered message or attachment, the
sender forwards the receipt to a verification address (verify@rpost.net).
RPost returns a receipt authentication that allows the sender to
unlock the original content and attachments. A sender can also grant
a recipient
(including any future recipient) the ability to unlock the original
content and attachments. Thus it is simple to verify the original
content, origin, and authorship of an e-mail message. Other useful
RPost features include password-based encryption and conversion of
Word, Excel, or Power Point attachments to PDFs before they are
mailed.
RPost has three payment methods. The pay-as-you-go method charges
$.59 per message; the flat rate method charges $19.95 per month for
50 messages (or $.39 per message). These two methods also require an
additional $39.99 license and software upgrades fee. The third
pricing method is the Domain Service Pack, which allows senders to
buy from 100 prepaid units for $79 to 5,000 units for $2,950. Users
wanting more than 5,000 units must contact customer service for a
quote. RPost also allows attorneys to enter a client code into a
dialog box that appears whenever the RPost Send Registered button is
invoked if they wish to bill clients for the RPost costs. The Los
Angeles County Bar Association has endorsed RPost, and that
endorsement entitles LACBA members to a free trial of 10 free
registered e-mail messages. To access the trial, visit
www.rpost.com/partners/lacba to complete a short application and
download and install the software.
More than
1,000 organizations worldwide are sending RPost Registered e-mail,
ranging from small law and insurance firms to the U.S. Department of
Commerce and the Government Accountability Office. Lawyers who subscribe
to RPost and take the extra second to click on the RPost Send Registered
button just might be able to avoid litigating whether someone received
an electronic document or avoid having to resort to expensive
e-discovery to prove receipt of an e-mail message or its content.
This
article is being reprinted with permission from “Los Angeles Lawyer.”
