Who Owns Your eMails?

[the]

Also, it seems the party you are associated with is the former employer.

If that's the case, I think if I were them, I'd consider making this the ex-employee's lawyer's problem. A strongly worded letter, to the effect "We had a protective order/confidential settlement discussion agreement in place, we provided you with our confidential financial information, and YOU e-mailed it to OUR COMPETITOR'S E-MAIL SYSTEM/SERVER. We believe they have now seen it, and you have caused us significant financial damage. Please tell us what YOU propose to do to remedy this situation that you have caused."

Hoo boy, that atty would break out into a cold sweat while reading that letter.

[CurtEgerer]

Thanks for the insight. That is one thiing I'm proposing to my 'hypothetical' attorney ... let's make this the ex-employee's lawyer's problem.

[the]

You cannot overestimate the power of making the lawyer's *client's* legal problem the *lawyer's* problem.

If you can accomplish that, you now have the opposing lawyer on YOUR side! But even better, he becomes like a "double agent." He still represents his client (your opposition), but because he is personally involved now, he will do everything he can to get himself off the hook, even if that means prejudicing his own client's interests. He just wants to make it go away. So he will steer/advise his client even into a bad deal, if it will make it go away. As a newly added participant in the problem, he now has a conflict (or at least potential conflict) of interest with his client. Of course, he won't tell his client that, he'll just work really hard to make the problem go away.

With that in mind, you and your atty should give some careful thought on how you approach this. The letter like I mentioned above may be too blunt of a hammer, because it makes his conflict of interest too obvious. A more subtle approach may work better. If it's a letter, something setting forth what happened, "gee, the e-mail ended up on a competitor's server, where they can see it, despite the protective order/confid. agmt, lots of damages," without highlighting the attys role too much. The letter needs to be carefully crafted so he gets the message, but isn't too obvious. Depending on what is happening, a phone call from your hypothetical atty may be more effective.

It's kind of like when you have some dirt on an adversary, like you know he is cheating on his wife. If your adversary knows you know, but the wife does not know, you have a lot of leverage on him. But if you tell the wife, yes, you've hurt your adversary, but not in a way that benefits you, and you have now lost all your leverage. (of course, that is a very crude example of the concept!).