Many companies train employees to enter phrases such as ‘confidential’ or ‘attorney work product’ and copy counsel when sending sensitive emails so that the information is protected under attorney-client privilege. In the event the company becomes embroiled in litigation, counsel would see such phrases and flag the messages as privileged, preventing them from inadvertently being produced to the other side during discovery.

However, while it’s a good idea to include such phrases in messages, it’s not always enough in the court’s eyes to designate it as privileged. Also, a computer’s auto-save feature may have saved versions of an email that didn’t include such phrases, leaving them unprotected. Both of these issues arose during Oracle America, Inc. v. Google, Inc.

“For each email being composed, Google’s system was saving multiple drafts of it. That’s probably something that you wouldn’t want to do,” says Jude A. Fry, a partner with Fay Sharpe LLP. “Then when the company got sued, there were, for this single email, multiple versions, and the only version put on the privileged log was the final one.”

Smart Business spoke with Fry about how companies can ensure privileged information sent through email is protected.

What happened in the Google case?

Oracle claimed Google’s Android smartphone platform infringed its patents, and the two entered into litigation. An email that included language that could be harmful to Google in the patent case was placed on a privileged log, a document describing items that can be withheld from a case under attorney-client privilege.

That internal email was sent to the vice president in charge of the Android smartphone platform at Google, copying Google’s counsel in the ‘to’ field. The email was captioned ‘attorney work product’ and ‘Google confidential.’

While the final version of the email was placed on a privileged log, auto-saves of the email were inadvertently produced to Oracle’s counsel during discovery. Since the auto-saved drafts did not include the phrases ‘attorney work product’ or ‘Google confidential,’ they were not caught by electronic scanning mechanisms.

Google demanded that Oracle return the emails under the clawback provision of the protective order, claiming the emails were privileged. Oracle returned the emails but filed a motion to compel their production. The district court ordered that the emails be reproduced.

How were the auto-saved drafts of the email not coded as privileged?

When doing the search, counsel was likely using key words to see what was coded as privileged. There were probably thousands of emails produced. Counsel was able to locate the final email because, by that point, the author had put the phrase ‘attorney work product’ in the email’s body and added the attorney as one of the recipients. However, in other auto-save versions those phrases weren’t included, so they didn’t get flagged.

What’s disturbing is that the system saved nine versions during the time it took to type it up. Why is it necessary to save all of those versions?

Consider only saving emails that are sent, and configure your email system to delete all other versions. Also, understand how your email system works — whether auto-drafts are saved, what happens to these drafts, where they’re stored. Figure this out now and not when a case is pending.

How should a corporate employee set up an email to make sure it is privileged?

Train your employees to direct the email to legal counsel in the ‘to’ field and salutation. State in the email that information is being given to or sought from the lawyer so that he or she can give legal advice. Also, include in the message that it is being prepared in anticipation of litigation, at the direction of an attorney, to further the provision of legal advice. Include headings such as ‘attorney work product,’ ‘privileged’ and ‘confidential.’ However, these headings alone will not make an email privileged, so limit the substance of the email to the legal issues.

People write a lot of emails but often don’t think about someone other than the intended recipient reading it. When doing business though email, consider who could possibly read the message and approach it accordingly. It’s a good practice to think carefully before you put something in writing.

Jude A. Fry is a partner at Fay Sharpe LLP. Reach her at (216) 363-9113 or

Insights Legal Affairs is brought to you by Fay Sharpe LLP

Published in Cleveland
Thursday, 14 March 2013 11:56

Is email still a viable tactic in 2013?

While email marketing has received plenty of media coverage over the years, the topic continues to come up with clients as they prioritize marketing activities for 2013 and beyond.

In the past

Email marketing was the first social media tool. It was the first channel that allowed a message from one person or company to reach a mass audience while still being personalized in the delivery.

By 2009, the prediction of the year was that email marketing was dead because of social media.

Well, email marketing continues to be a viable and very productive marketing tactic. It also continues to outperform other channels in generating a return. According to the Direct Marketing Association:

Email generates $39.40 for every dollar spent.

Search generates $22.38 for every dollar spent.

Display generates $19.71 for every dollar spent.

Social generates $12.90 for every dollar spent.

So what makes email marketing still relevant today?

There are only two ways to directly and uniquely contact a person to initiate a one-on-one conversation: by email and by cell phone. While some might argue that social channels enable engagement, social continues to be a “group discussion” and not a direct conversation. This means that an email address and a cell phone number are the doorway to direct communication with an individual — a prized asset!

How are companies using email?

  • Email newsletters — Email newsletters are the backbone of any email marketing program. What makes email newsletters work today is a dedication to developing content that is truly different, meaningful and succinct that your readers (customers and prospects alike) can quickly read and apply to their business. This is not the generic newsletter of the past containing 10 articles. This is a thoughtfully written educational piece that provides value to the reader.

  • Triggered email campaigns — While the usage of email newsletters has dropped slightly in the last two years, there is a rise in the use of targeted and segmented emails. Sending content (emails) to people that speaks to their stage in the buying process significantly increases open rates while also increasing the positioning of your brand as a value-added partner. These are opt-in emails that are time triggered to an event whether that is a subscription date or a recent purchase.

  • Email updates in social media — All social media platforms from Facebook to Twitter to YouTube use email as a fundamental backbone of their infrastructure. By actively participating in social networks, you increase the chance of your content being featured in a social update email generated by the social platforms. This can range from general updates about your company to your individual employees being featured as subject-matter experts within the social email.

  • Email and social together — Content creates conversation and conversation creates content. Social media and email marketing, when used together, are a powerful combination that engages your audience. For example, if you post a question to a social channel that generates responses from your community, these responses can then be turned into content for an email newsletter or blog. Similarly, interesting and powerful content sent via email can ask people to comment or share their opinion thus serving as the conversation initiator on a social channel.

The landscape for email marketing continues to evolve. Email stands to experience another transition this year as trends point to email readership on mobile devices to surpass the 50 percent mark by the end of 2013. The questions to ask yourself are: How do your emails look on mobile? How will your company leverage the oldest social tool for conversation and content?

Kristy Amy is the director of digital strategy for Smart Business Network. Reach her at or (440) 250-7011.

Published in National

Are we ever really done?

It’s a good question to ask when your inbox is always full. There will always be another post to write, a text to make, emails that beg answering, a comment you should probably respond to. So in a way, you are never really “done.”

If your work is never truly done, it’s more than a challenge. It can be disheartening and sometimes really depressing. Then again, pure silence could be just as disheartening.

Seth Godin calls this “Dancing on the edge of finished.”

If Godin is right to call our never-ending affair with communication technology a dance, where do we draw the line? When do we let go of the smartphone, the laptop, the iPad? And when you have dinner with the kids are they (or you) always on the phone? One friend of mine has a basket at home and that’s where his cell phone goes when he walks in the door each night. Or how about the classrooms that have started collecting cell phones at the door so the kids are not distracted?

I think that finding your “edge” is a personal challenge. Being never completely done with work is OK, as long as it doesn’t become a grind or interfere with the rest of your life. At some point, won’t it make work a chore?

You have to be comfortable with your “edge.” But first, you’ve got to find it:

  • Learn to leave the office and pretend the gates are closing behind you. You can’t think about work until you come back through the gates the next morning.
  • Do your business reading at work and not at home. Reading business items before going to bed will only disturb your sleep.
  • Have a pad of paper on your nightstand. Write down anything you think about to get those thoughts out of your mind and you will also sleep better.
  • Vacation reading: make a pact that you will only read fiction books, biographies or nonbusiness-related materials.
  • Don’t bring business issues home to your spouse. Unless they are especially good therapy, it’s better to have a business associate you can have coffee with and confide in.

Seth Godin recently blogged about a concept called “signal to noise ratio,” the relationship between the stuff you want to hear verses the stuff you don’t. According to Godin, Twitter, email and Facebook all have an alarmingly bad ratio, and it’s getting worse.

The world, it seems, is getting spammed to death from all sides — Twitter, email, Facebook, LinkedIn — from advertisers, friends, business, even family. There’s so much stuff out there from so many sources, that we don’t have time, let alone the attention span, to absorb it.

How do you stay in touch without getting overloaded? Godin recommends relentless editing of social media (whom you follow and whom you listen to) and finding new channels you can trust, such as RSS feeds from bloggers and other sources.

In other words, stay on top of what stays on the top of your social media pile. Here are some ideas:

  • Do you use a spam filter for your email at work? At least once a week, unsubscribe from the stuff you don’t want to receive anymore.
  • Create folders to file email messages. For example, create “rules” that automatically file emails to read later into a “reading” folder. Be creative with these folders. Other examples might include a folder for those items you have delegated or folders for each of your projects.
  • Set up email rules with your colleagues. Do you really need to get all the emails they send you, and do you always need to be copied?
  • Make it a goal to always have your email inbox totally clear of unread messages. Take action or filter everything else.

Each of these ideas will make your mind clearer. When it’s clear (and uncluttered) you can make decisions easier, and you will have more time for creative thinking.

David Harding is president and CEO of HardingPoorman Group, a locally owned and operated graphic communications firm in Indianapolis consisting of several integrated companies all under one roof. The company has been voted as one of the “Best Places to Work” in Indiana by the Indiana Chamber of Commerce. Harding can be reached at For more information, go to

Published in Indianapolis

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Now more than ever, companies need their employees to remain connected and productive. New, affordable cloud-based solutions enables companies to transform operations while trimming expenses and reducing the burden on IT support resources.

“An average 25-person business saves $11,556, or 82 percent, during the first year of replacing its premises-based email and messaging with a cloud-based one. This yields a two-month pay back period,” says Mike Maloney, vice president of business services at Comcast.

Smart Business spoke with Maloney about how to save money by moving your business toward cloud-based solutions.

What  challenges are businesses facing with setting up and managing email and messaging?

Small and mid-sized businesses have limited IT staff and must balance their IT expenditures against other corporate priorities. Setting up and managing various pieces, including email and messaging, is expensive. Not only are the initial equipment expenses sizable, but ongoing IT support, server maintenance, licensing and software updates also add costs in future years.

How can businesses decide if the implementation costs of a cloud-based solution are worth it?

In 2009, the Yankee Group researched the real costs of email and messaging operations in a 25-employee business for one year. Its cost results found:



Deployment   $0

Licensing, maintenance, support   $12,000

Security   $1,382

Backup   $638

Training   $0


TOTAL   $14,020


Deployment   $240

Licensing, maintenance, support   $1,761

Security   $0

Backup   $0

Training   $0

TOTAL   $2,001

The upfront migration and implementation costs of the Microsoft/Comcast cloud-based platform of $2,001 still resulted in savings. Additionally, the cost savings grew to 84 percent over three years, for a total savings of $36,042.

The study assumed there were no custom-built exchange applications; no unified messaging platforms; standard email and messaging security; and a server already capable of handling on-premises email and messaging. In addition, the features and functionality were replicated in both email solutions, even though cloud-based technology typically has more applications and features.

With the help of telecommunications and computer professionals, employers can explore the cost and feature trade-offs between hosted and on-premises email. A hosted solution even can be appropriate for a small business with 10 or fewer employees that generally has no IT staff and where an on-premises email might be impractical.

What are some of the additional features found in cloud-based email and messaging?

Features that are commonly found with both on-premises and cloud email are addresses with company domains, shared calendaring, shared contacts, email storage of 2 gigabytes per year, anti-spam, anti-virus, mobile email, and email archiving and retrieval. Even with these shared features, there still are cost savings with the cloud because anti-spam and server-based anti-virus, which companies are typically paying for with their premise-based email and messaging, are included as part of the cloud.

Some additional cloud features include a collaboration solution such as Microsoft SharePoint, secure email backup and document sharing. The cloud’s secure email backup is important because many small or mid-sized companies employ tape drive based storage for this service, which comes with a fairly low level of security as tapes easily get lost, stolen or damaged.

Based on research into cloud-based email and messaging, what steps do you suggest mid-sized business IT departments take?

  • Switch to cloud-based messaging and email platforms, empowering remote and mobile employees. A number of vendors, including Comcast, provide a compelling suite for businesses.

  • Take the opportunity to start using cloud-based collaboration solutions. A collaboration solution, such as Windows SharePoint, can be used for sharing documents where multiple people can access a document simultaneously and incorporate a number of comments and edits. This software also is useful for sharing files that are too large to email such as those with high-quality graphics, technical diagrams or photographs.

  • Budget a few IT days for training. Switching applications creates stress, so plan for training, even if these costs are only opportunity costs for your IT employees. Not all organizations will need this, but it provides a safety net for companies where the transition to cloud-based technology is more difficult.

  • Develop a good change-management plan to help alleviate end-user pains. Switching from premises-based email to the cloud can be less onerous than switching vendors’ products, if you stay within the same company. Therefore, the change-management plan can be fairly simple, but make sure it includes employee outreach, reminders, training services, online guides, printed guides and contingency plans.

A hosted solution can provide a level of simplicity, reliability and functionality while offering a more professional-grade solution to emailing and messaging.




Note: The Yankee Group is a leading source of insight and counsel trusted by builders, operators and users of connectivity solutions for nearly 40 years. For more information, visit

Mike Maloney is a Vice President of Business Services at Comcast. Reach him at

Insights Telecommunications is brought to you by Comcast Business Class

Published in Philadelphia