Is Attaching Several Documents To A Single Email Procedurally Unconscionable?
Monday, November 6, 2023

In the high and far-off times, physical delivery was the only option of providing documents to the other side.  Before copy machines, an agreement would be written and then rewritten on the same page.  The two copies would be separated by cutting them apart unevenly, with a copy handed to each party.  This practice gave rise to the terms "party of the first part" and "party of the second party".  If there were three parties, the agreement would be written out three times.  The resulting document was denominated an "indenture", referring to the jagged line of separation.   Thus, in Act III, Scene 1 of Henry IV, Part 1, Mortimer says "And our indentures tripartite are drawn".*   "Indenture" is is derived from the Latin word, dens, which in English means tooth and from which the English word "dentist" is also derived.  Apparently, the line of separation reminded some of teeth marks.

Technology has advanced and documents in various formats are often attached and delivered by email.  In a recent Nevada case, an employer sued three former employees for enforcement of a noncompete covenants.  Tough Turtle Turf, LLC v. Scott, 139 Nev. Adv. Op. 47 (Nov. 2, 2023).  The trial court invalidated the noncompete covenants on the basis of procedural unconscionability - the former employees argued that the agreement was one of several documents attached a single email.  They also complained that the noncompete was merged with the preceding paragraph of the agreement and did not start on a new line. 

The Nevada Supreme Court did not agree, finding that the erstwhile employees failed to show that they did not have a meaningful opportunity to review agreements or that , when they signed and returned the agreements, they did not assent to all of the terms.  According to the Supreme Court, any procedural unconscionability arising from the merger of the noncompete paragraph with the preceding paragraph was insufficient to invalidate the noncompete covenant without an additional showing of substantive unconscionability.

The trial court did find that the noncompete covenant was "overbroad, oppressive in scope, and one-sided".  On appeal, the employer argued that the trial court erred in not revising the covenant.  How the Supreme Court handled this argument will be the subject of a future blog post.

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*The tripartite indenture is an historical document that was entered into in February 1405 and would have apportioned King Henry's kingdom among Owain Glyndwr, Edmund Mortimer (Henry's cousin who was married to Glyndwr's daughter), and Henry Percy. 

 

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