A link to a PDF, report or other document may do more than simply open a file.

Some document-sharing platforms can track how recipients interact with shared materials, including when a document is viewed, which pages receive attention, how long pages remain open and whether someone returns to the document.

For real estate professionals involved in a dispute or errors and omissions claim, that is important to understand. Digital activity can create information beyond the contents of the document itself.

Not by itself.

If someone repeatedly reviews one page or spends more time on a particular section, the sender might draw conclusions about what attracted that person’s attention. But document analytics cannot establish why someone reviewed the information or what conclusions an attorney, claims professional or other recipient reached.

The data can also be imperfect. Dropbox, for example, says its timer pauses when a viewer navigates away from a document but may continue recording if the document remains on screen while the viewer steps away. Location information can also be affected by the use of a VPN.

Document activity is therefore a data point, not proof of someone’s legal strategy, opinion or intent.

Real estate disputes can involve large amounts of electronic information. Emails, inspection reports, disclosures, photographs, contracts, repair estimates and demand letters may all become part of a claim.

When those materials are delivered through tracked links, interaction with them may generate additional information.

That does not mean real estate professionals should avoid electronic documents. It means digital activity surrounding a dispute deserves the same care as written statements, emails and conversations.

If a transaction develops into a dispute or potential E&O claim, involve the appropriate professionals early.

Avoid attempting to negotiate or settle a claim on your own. CRES advises policyholders that handling or settling a claim without carrier consent can jeopardize coverage. CRES also recommends reporting claims promptly and following the reporting requirements and deadlines contained in the applicable policy.

Do not assume that opening a shared document is the same as opening a traditional email attachment.

A link may lead to a platform capable of recording information about how the document is accessed and reviewed.

When dealing with a demand, lawsuit or potential E&O claim, follow your attorney’s or claims professional’s instructions regarding how documents should be accessed, stored and shared.

Avoid casually forwarding claim-related links, documents or communications.

Some document-sharing systems can record activity by additional viewers. More importantly, claim materials may contain confidential, privileged or otherwise sensitive information.

Let your attorney or claims professional guide how those materials should be distributed.

The potential implications of undisclosed tracking have already attracted attention from the legal profession.

In a 2018 advisory opinion, the Illinois State Bar Association considered whether lawyers could use undisclosed tracking software in electronic communications with other lawyers or clients.

The opinion addressed technology capable of providing information such as when communications or attachments were opened, how long materials were viewed, which individual pages received attention, whether attachments were downloaded and whether materials were forwarded.

The Illinois State Bar Association concluded that a lawyer may not use such tracking in communications with another lawyer or client during the course of a representation without first obtaining the recipient’s informed consent.

That is an Illinois advisory ethics opinion, not a nationwide rule. Professional conduct requirements vary by jurisdiction.

Still, the opinion demonstrates an important point: Undisclosed tracking can raise issues involving confidentiality, privacy and professional responsibility, not just technology.

Tracking technology has also become an issue in an actual court proceeding.

In the 2025 New York matrimonial case D.P. v. S.P., a party testified that he had used email-tracking software during the litigation. According to the court’s published opinion, the technology allowed him to determine when emails were opened, the location where they were opened and whether attachments had been opened.

The court did not rule that email tracking is generally unlawful. After the issue arose during trial, however, the parties entered into a stipulation prohibiting either party from using email-tracking technology in communications with the other. The court stated that violating the stipulation could result in further judicial review and potential consequences.

The case involved family law rather than real estate or E&O insurance and the technology involved email tracking rather than a document-sharing portal. It is still instructive because it shows that information generated by tracking technology can become relevant during active litigation.

California real estate businesses should also understand how document-tracking data may intersect with the California Consumer Privacy Act, or CCPA.

The CCPA regulates how qualifying businesses collect and use personal information about California residents and gives consumers certain rights over that information.

Document tracking does not automatically violate the CCPA. Whether the law applies depends on factors including what information is collected, who collects it, how it is used and whether the organization is subject to the law.

California defines personal information broadly as information that identifies, relates to, describes or could reasonably be linked, directly or indirectly, with a particular consumer or household.

The statutory definition specifically includes online identifiers, IP addresses, internet or electronic network activity and geolocation data. It can also include inferences drawn from personal information to create a profile about a consumer.

As a result, information generated through document-tracking technology may constitute personal information if it can reasonably be connected with a California resident.

The CCPA does not automatically apply to every California real estate agent, brokerage or firm.

The California Privacy Protection Agency currently identifies several thresholds for covered for-profit businesses doing business in California. Among them are businesses with annual gross revenue of at least $26.625 million, businesses that buy, sell or share the personal information of 100,000 or more California residents or households and businesses that derive at least 50% of annual revenue from selling or sharing California residents’ personal information.

The law can also apply to certain related entities, service providers and contractors.

California real estate businesses should determine whether the CCPA applies to their specific operations rather than assuming they are either covered or exempt.

For real estate professionals, there is another important distinction.

Simply receiving or opening a tracked link does not, by itself, mean you have created a CCPA violation.

The more relevant privacy questions generally arise for a covered business that collects, retains, uses, shares or otherwise processes information generated through tracking technology.

Businesses using these tools should understand what information is collected, why it is collected, how it is used, how long it is retained and whether their privacy practices appropriately address that collection.

California law also recognizes that privacy obligations cannot prevent businesses from exercising or defending legal claims.

California Civil Code Section 1798.145 states that CCPA obligations do not restrict a business’s ability to exercise or defend legal claims. California Attorney General guidance also explains that certain consumer requests may be denied when complying would restrict a business’s ability to comply with legal obligations or exercise or defend legal claims.

This is not a blanket exemption for anything connected with litigation and it does not establish that every form of tracking is permissible.

Instead, it means the relationship between tracking data, consumer privacy rights and litigation depends on the specific circumstances.

California businesses with questions about tracking technology or personal information connected with an active dispute should consult qualified privacy or litigation counsel.

There is no reason to assume that every attorney uses document-tracking technology or that every shared link contains sophisticated tracking.

What is publicly documented is that the technology exists, it can generate detailed information about document engagement and its use has already raised issues involving litigation and legal ethics.

For real estate professionals, the practical takeaway is straightforward:

When a transaction becomes a dispute, recognize that your digital activity may leave a record.

Be thoughtful about the links you open, the documents you forward and the communications you send. Most importantly, involve your attorney and E&O insurance professionals early rather than attempting to manage a developing claim yourself.

Early guidance can help when a transaction begins to develop into a dispute.

CRES Real Estate E&O + ClaimPrevent® policies include access to experienced real estate attorneys for pre-claim legal guidance. ClaimPrevent® attorneys can answer questions, review contracts and documents, write letters and provide guidance designed to help address issues before they escalate.

If you receive a demand, lawsuit or another circumstance that could require reporting, review your E&O policy and follow your insurance carrier’s claims-reporting requirements promptly.

This article provides general risk management information and is not legal advice. Privacy laws, professional conduct requirements and insurance policy terms vary by jurisdiction and individual circumstances.