Wednesday, December 14, 2011

Can a Legal Notice Be Sent By Email?

Dear Rich: I got a cease and desist notice by email. Is that legal? How can they prove that I got it? Yes, a cease and desist letter has the same legal effect whether it is sent by U.S. mail, email, or as a text message. The two laws that confirm the acceptability of electronic notices are “UETA” (the Uniform Electronic Transactions Act), adopted in all states except Georgia, Illinois, New York and Washington, and “ESIGN” (Electronic Signatures In Global and National Commerce Act), a federal law. Unless some other law prohibits it, UETA and ESIGN permit the use of typical electronic notices. Put another way, under both of these laws, a legal notice cannot be denied admission in court simply because it is electronic (and not on paper). The key to admission in these cases is demonstrating authenticity of the email and receipt. So, if a lawyer sends you an email cease and desist notice, under UETA, that email is considered to have been “received” when your email server (the one connected with the your email account) receives the message from the lawyer. The email protocol used when sending email over the Internet confirms your address. However, demonstrating receipt may require discovery mechanisms to obtain your email server records. Note, that you are considered to have “received” the email even if it falls into your spam filter, provided that you have the ability to obtain the message from the filter or have control over the filter’s settings. Lawyer's often use a system such as RPost (http://www.rpost.com/) when sending electronic email notices.