Is the Confidentiality Disclaimer at the Bottom of an Email Legally Binding?

iStock/Mlenny
iStock/Mlenny

For most of us, a day doesn’t go by without receiving a notice that “This email and attached documents may contain confidential information” and that you’re not authorized to read it if you aren’t the intended recipient. Anyone who has ever received one of these has probably wondered: How legally binding are these boilerplates?

The answer is: not very—though that’s not the entire story.

It’s generally agreed by legal experts that the generic boilerplate at the end of many emails has no legal weight behind it. It’s attempting to create a contract, but for a contract to apply both parties need to agree, which doesn’t happen in this case. At best it may make people paranoid about sharing your email and have an effect that way, although not necessarily through the power of law.

One case followed a doctor looking into suing his employer. Perhaps foolishly, the doctor emailed his lawyer from his work email, meaning that the employer felt that any confidentiality had been waived by use of the work email. The doctor disagreed and went to court. Part of the case was that every email sent by the law firm had the same standard disclaimer, but on that point the court ruled “[the law firm’s] pro forma notice at the end of the e-mail is insufficient and not a reasonable precaution to protect its clients.”

And their scope can be limited. One famous case seeking a protective order involved an extremely threatening email that included lines such as “Your most determined, unstoppable, and visceral enemy,” ending with "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.” The court was unimpressed, granting the protective order and explaining "You can't send documentation of both a threatening and harassing manner and then think that you can get away with that by simply putting a disclaimer on it."

SHOULD I HAVE ONE?

This is not to say it’s useless to put a disclaimer on your emails, particularly with professional correspondence. In 2011 a lawsuit dealt in part with whether a customer list was a confidential trade secret. To maintain a trade secret, you need to take “reasonable efforts” to protect it. And the court determined that for a slew of reasons this customer list didn’t qualify as a trade secret. One of the issues brought up by the judge—though by no means the only one—was that the customer lists were sent to the other party on multiple occasions, and “The emails contain no disclaimer about the confidentiality of the materials attached.” That’s not to say the sending party would have been protected had they included the disclaimer, but the lack of one was a knock against them.

Disclaimers can also protect against contracts being formed. In one case, a real estate investor contacted a bank to inquire about some properties for sale. They signed a negotiation agreement acknowledging that email messages wouldn’t be considered binding. Over email he then made an offer, the bank made a counteroffer, and the investor agreed. The officer at the bank, however, had a disclaimer explaining that any price or term mentioned was not binding until the executive management committee signed off. Eventually the bank declined the agreement and the investor sued arguing breach of contract. The court ultimately ruled “in light of the e-mail disclaimers and the negotiation agreement [the investor] signed, any belief he had that his e-mailed acceptance of the counteroffer had created a binding contract was unreasonable.”

SO WHAT TO DO?

If you want to make your disclaimers count, and have a fighting chance in court if the situation arises, experts have a few suggestions. According to the law firm Reid & Hellyer, “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.” But it’s probably best not to count on it to get you out of a jam.

*Disclaimer: this is not intended as a substitute for legal advice. Please consult a lawyer first!

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What's the Difference Between Tequila and Mezcal?

iStock.com/mediaphotos
iStock.com/mediaphotos

Aside from tacos, enchiladas, and other tasty tortilla-wrapped treats, tequila and mezcal are among some of Mexico’s best-known offerings in the food and beverage category. These tipples, made from the agave plant, are so embedded in the country’s culture that Mexico City even has a museum dedicated to the two drinks, and Jose Cuervo operates a "tequila train" to none other than the city of Tequila. These beverages can be used to make a variety of cocktails, from the tequila sunrise to the mezcalita, but unless you’re a bartender or a connoisseur of spirits, you might not know the difference between the two. Is mezcal just fancier tequila?

Not exactly. Tequila is a type of mezcal, but the reverse isn’t always true. It’s similar to the distinction between champagne and sparkling wine, in which the name of the beverage depends on whether it was produced in the Champagne region of France or elsewhere. While mezcal can be produced anywhere in Mexico, tequila is made in the Mexican state of Jalisco (though a few exceptions do apply).

Tequila and mezcal also differ in the ingredients from which they are derived. Mezcal can come from any of the dozens of agave plants—a type of desert succulent—that are grown throughout Mexico. Tequila is made specifically from blue agave and, depending on the variety and brand, a bottle will contain between 51 percent and 100 percent of the plant-based nectar. According to The Tierra Group, a wholesaler of agave products, blue agave nectar is especially sweet because it’s 80 percent fructose, per Mexico’s regulations.

Lastly, tequila and mezcal taste different because of the ways in which they are prepared. Mezcal tends to have a savory, smoky, earthy flavor because the agave hearts (or piñas) are left cooking for several days in a fire pit that has been lined with volcanic rock and covered with agave leaves and earth. The piñas destined to end up in tequila, on the other hand, are often cooked in a brick oven, then crushed up to extract the juice.

If you ever feel adventurous at the liquor store and decide to bring home a bottle of mezcal, just keep in mind that there’s a particular way to drink it. “The first mistake many people make is pouring mezcal in a shot glass and pouring it down their throat,” Chris Reyes, a mixologist at New York City’s Temerario bar and restaurant told Liquor.com. Instead, the spirit is best sipped in a clay cup known as a jicarita.

Some words of advice if you do go shopping for mezcal: If you ever see a worm at the bottom of the bottle, that means it’s probably not a very good mezcal, according to Reyes. By contrast, tequila bottles should never have worms in them (despite the common misconception). So if you’re looking to avoid invertebrate-infused concoctions at all costs, tequila is your best bet.

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Presidents Day vs. President's Day vs. Presidents' Day: Which One Is It?

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iStock

Happy Presidents’ Day! Or is it President’s Day? Or Presidents Day? What you call the national holiday depends on where you are, who you’re honoring, and how you think we’re celebrating.

Saying "President’s Day" implies that the day belongs to a singular president, such as George Washington or Abraham Lincoln, whose birthdays are the basis for the holiday. On the other hand, referring to it as "Presidents’ Day" means that the day belongs to all of the presidents—that it’s their day collectively. Finally, calling the day "Presidents Day"—plural with no apostrophe—would indicate that we’re honoring all POTUSes past and present (yes, even Andrew Johnson), but that no one president actually owns the day.

You would think that in the 140 years since "Washington’s Birthday" was declared a holiday in 1879, someone would have officially declared a way to spell the day. But in fact, even the White House itself hasn’t chosen a single variation for its style guide. They spelled it “President’s Day” here and “Presidents’ Day” here.


Wikimedia Commons // Public Domain

Maybe that indecision comes from the fact that Presidents Day isn’t even a federal holiday. The federal holiday is technically still called “Washington’s Birthday,” and states can choose to call it whatever they want. Some states, like Iowa, don’t officially acknowledge the day at all. And the location of the punctuation mark is a moot point when individual states choose to call it something else entirely, like “George Washington’s Birthday and Daisy Gatson Bates Day” in Arkansas, or “Birthdays of George Washington and Thomas Jefferson” in Alabama. (Alabama loves to split birthday celebrations, by the way; the third Monday in January celebrates both Martin Luther King Jr. and Robert E. Lee.)

You can look to official grammar sources to declare the right way, but even they don’t agree. The AP Stylebook prefers “Presidents Day,” while Chicago Style uses “Presidents’ Day.”

The bottom line: There’s no rhyme or reason to any of it. Go with what feels right. And even then, if you’re in one of those states that has chosen to spell it “President’s Day”—Washington, for example—and you use one of the grammar book stylings instead, you’re still technically wrong.

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