The point is that rather than try to enforce agreements individually,
automatically slapping the notices on is not so unreasonable all
considered.
While it may be annoying, its not baseless. It certaintly isn't
useless in discovery.
Once again, I would be most interested in any statute or case law to support this claim. I've been involved in a lot of discovery in a lot of cases over the years, and I cannot remember a single instance where a boilerplate confidentiality notice was even noted, much less enforced.
As I said:
In reality, boilerplate confidentiality notices merely document the fact that a mail system is in the grip of the clueless and/or confused.
Actually that's not a great idea. A notice that the recipient is
expected to handle information with unusual attention to
confidentiality is required by law to stand out so that there isn't
any ambiguity about the duties demanded of the recipient. Trade secret
cases have been lost because a sender relied on the email boilerplate,
the recipient produced intentionally public emails with the same
boilerplate, and the recipient asserted that he had no reason to
believe the particular message was any more sensitive than the
sender's routine public messages.
I have never understood how posting the "warning" at the bottom of the email
after you have already given up the "protected" information could possibly
be considered enforceable. I thought most NDA's required willing acceptance
by both parties before it could be considered valid, a message at the bottom
of the email that I have not agreed to should not be considered a valid
contract. That is kind of like putting the software license agreement inside
the box and the only way to get to the agreement is to open the shrink wrap,
but opening the shrink wrap is your acceptance of the agreement. If you put
the "warning" at the top of the email before what you are trying to protect
I *might* be more likely to believe it could be enforced.
I have never understood how posting the "warning" at the bottom of the email
after you have already given up the "protected" information could possibly
be considered enforceable.
It might be useful to look at what some people in the legal business say about these disclaimers:
"Don’t go overboard and mark everything in sight confidential. If
virtually everything, including public information, is marked
“confidential,” a court may conclude that nothing was really
confidential. It is better not to mark anything than to mark
everything."