Have you ever received an email message directed to someone else by mistake? Almost everyone with an email address has. What if, upon reading the message, you discover it was not intended for you but, instead, your fiercest competitor? That is precisely the position in which Acutronic USA Inc. (Acutronic) found itself when it received messages intended for its competitor in the missile simulator and motion sensor industry, Ideal Aerosmith Inc. (Ideal).

The situation arose when Carco Electronics, another of Acutronic and Ideal's competitors, went into bankruptcy. Many former Carco employees were hired by Ideal and some continued to use their Carco email addresses. After Carco's assets, including the corporate email addresses, were purchased by Acutronic, all email directed to those addresses, including to the former Carco (now Ideal) personnel were then directed to Acutronic's e-mail server. Upon discovering what was happening, Ideal filed a federal lawsuit against Acutronic, alleging various claims, including violation of the Electronic Communications Privacy Act of 1986, commonly known as the "Wiretap Act."

In ruling on a motion filed by Acutronic, the court dismissed the Wiretap Act claim because Acutronic did not "intentionally intercept" the messages. Instead, they arrived in Acutronic's email server without any action by Acutronic. Intentional intercept or, at least, an attempt to do so, is required for a violation of the Wiretap Act. The court did, however, allow Ideal's other claims, based on Pennsylvania law, to survive. Those claims, which Ideal must still prove against Acutronic, include trade secret violation, unfair competition and conspiracy.

So what is the most prudent course of action if you find yourself in Acutronic's position? In addition to potential legal liability based on theories and claims other than the Wiretap Act, there are also ethical considerations.

If you receive a sensitive message that is not intended for you, an appropriate practice would be to notify the sender and request that they update their records to avoid repeating their mistake. Taking prompt action may help to avoid legal liability later. As an email sender, there are also some simple preventative steps you can take -- double check that you are using the correct email addresses before hitting 'Send' and include a notice that the message is confidential and only for the intended recipient.

For more information about the case, please contact Kathy Ossian, Leader of our Information Technology Team, or call her direct at 313.496.7644.