Proving the Authenticity of Emails

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In 2010, Paul Ceglia sued Facebook, claiming that he and then-Harvard-student and now-Facebook-CEO Mark Zuckerberg signed a contract that gave Ceglia 84% ownership of the then-fledgling venture. In April of this year, an amended complaint was filed that included emails and a copy of a contract supposedly signed by Zuckerberg giving each man equal ownership of the company, purportedly from the period during which Facebook was in its early development. Zuckerberg’s lawyers dispute Ceglia’s claims, claiming that the contract was for an unrelated project—they also dispute the veracity of the emails included in the complaint. If Ceglia is successful, he could be entitled to $25 billion—one-half of Facebook’s estimated value.

Zafar Khan, the CEO of RPost, has written an interesting open memo to Zuckerberg that is intended to be of use to the court in evaluating Ceglia’s claims.  Basically, the memo focuses on two important issues that are useful for all of us to keep in mind as we consider whether or not to use email as a delivery and content management tool:

• Email is not easily admissible during legal proceedings. This is because email can be altered after sending; and because things like server logs, bounce notices or receipt of an email by a subset of all intended recipients is not necessarily proof of delivery to a specific recipient.  In any legal proceeding, the burden of proof is on the party claiming that their email record is valid.
• In common law, the “mailbox rule”—which applies to contracting parties that are communicating through postal mail—basically dictates that acceptance of an offer takes place when notice of it is posted, not when it is received by the offeror. This rule really does not apply in era of email communications, since the sender needs to demonstrate proof of receipt, when the email was sent and other matters of authentication. LexisNexis posted an excellent overview of a key legal case that focuses on this issue, Lorraine v. Markel American Insurance Co.

An important takeaway from all of this is that critical business communications sent through email must be managed in such a way that proof of receipt and time of delivery can be demonstrated to a court’s satisfaction.  RPost is obviously interested in this area because they provide some very useful offerings that can do just that (as well as enable electronic signing of documents). Bigger picture, however, it is important for business and IT managers to carefully consider these issues from a policy perspective and to ask themselves two important questions:

• Should we use email for critical business communications, or limit communications about things like order acceptance, employment offers, performance complaints to vendors, etc. through more traditional channels like postal mail?
• If we opt for email as a delivery method for these types of communications, what mechanisms will we use to be able to prove receipt and electronically sign documents?

To be sure, few of us will be sued for $25 billion anytime soon. But the issues raised by Ceglia and Zafar Khan’s memo should get us thinking seriously about these issues.