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The JC’s guide to electronic communication
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Is email an electronic messaging system as contemplated by Section 12 of the 1992 ISDA? No, according to Greenclose v National Westminster Bank plc.
As a workflow regulator
An Outlook inbox is a serviceable to-do list (after a fashion: if your relationship with your mandated queue of things you are meant to do is like the JC’s it will be impressionistic at best) and a single annual folder is an oubliette into which everything goes that you have either dealt with or that you are past caring about, if you were ever presently caring about in the first place.
There is a certain sort of legal eagle who will diligently file every email into a dedicated subfolder. Actually, most legal eagles will do this, regardless of — will, ignorant and/or in denial about the fact that manually filing emails is the biggest waste of intellectual capital since the invention of human resources. It is antediluvian, as it commits you to a pre-defined taxonomy which might have made excellent sense when you created the emails, but will ber no relation to your enquiry when you come to retrieve them. If you want to pull together every example you have contracts of limited recourse wording when you filed them by deal, you are going to be rifling through a hell of a lot of virtual filing cabinets.
Emails come pre-loaded with metadata: from, to, cc, subject, attachments, date sent, date received. All email service providers data index your email archives, so retrieving by search is trivial and lightning-quick. You don’t need to impose any further taxonomy on top of that.
With the inbuilt metadata, it is easy to construct sophisticated Boolean searches: so {from:jc to:iolio subject:flannel Sent:08/2020 "ISDA crack drafting squad"} will pull up what you want with good accuracy in a split second.
And you can "save" that search, and use it as a virtual folder, and it will automatically pull back all future information you get without you having to do anything.
It also means the same email can be in several folders at once.
There is a reason there’s no Dewey Decimal System for the internet. Though, bless them, someone tried.
There is a self-enforcing prioritisation method called "if no one hassles me about it, it can't be that important." After all, whose problem is it if you haven’t answered their email? This is especially good for filtering meeting requests. Best to keep people guessing whether you will show or not. Those who really care will call you.
As a means of serving close-out notices
Has its time come? or gone?
- Good luck getting your client to agree it: It may have taken coronavirus to open the legal eagle]]’s pirblind eyes to the virtues of email, but the market will still be slow to accept it. ISDA has always struggled with the concept, as we know, and inhouse lawyers being the creatures of habit that they are, you can see many of them just refusing email on principle. If one side won’t agree it, should the other? Is that’a great asymmetry to be exposed to? We think not.
- Email is pretty rubbish really: There are some good arguments against email:
- It isn’t secure, isn’t authenticated, is easily hacked, and there are no reliable “confirmation of transmission” mechanisms, as there are for closed systems like Swift, Bloomberg, and for that matter even WhatsApp or messenger, or even the dear old fax. This is the genesis of ISDA’s differentiation between “email” and “electronic messaging system” (in neither version of the ISDA does email count as an “electronic messaging system”)
- It is already on the way to becoming redundant technology – for many of the reasons above, and others. The fax went from exciting new thing you would use to send Gary Larson cartoons to each other to fossil in 15 years. Better, more secure, forms of electronic communication emerge every year. Backing email would be a bit like backing VHS in 1995.
- Bear in mind your internal governance around email address protocols in master agreements. There isn’t likely to be much.
- no individual email addresses, for any reason. Generic distribution lists only. but even these aren’t a silver bullet: make sure formal notification DLs are not and indeed cannot be deleted, and their membership is maintained through time by people in relevant roles - folks move around in big organisations. Ensure those employees are obliged to monitor emails even if they don’t otherwise use email (it is hardly out of the question that email could disappear as a form of communication in the next decade, as telex and fax has done) . To that end, have some facility for unilaterally withdrawing email as an acceptable means of communication on notice, or requiring counterparties to provide us with alternative communication means, should email stop “being a thing”.
And don't forget the difficult cases in English law about email and ISDA – notably Greenclose v National Westminster Bank. The courts aren’t awfully reliable at this sort of thing, so there is some tail risk from bad decisions on service.