June 2010

                                        

In cases with significant email traffic lawyers often use applications that sift through emails and documents using specific search phrases and terms.  Usually, the search terms and phrases tie to significant issues to the case or dispute.  Recently, the search terms used by the lawyers investigating the Lehman Brothers debacle were published. Those lawyers were charged with going through approximately 700,000 plus documents which totaled somewhere around 8 million pages.  They used a variety of search terms/phrases but the search that stood out was this one:

Shocked or speechless or stupid* or “huge mistake” or“big mistake” or dumb or “can’t believe” or “cannot believe” or “serious trouble” or “big trouble” or
unsalvageable or “too late” or ((breach or violat*) w/5 (duty or duties or obligation*)) or “nothing we can do” or uncomfortable or “not comfortable” or “I don’t
think we should” or “very sensitive” or “highly sensitive” or “very confidential” or “highly confidential” or “strongly disagree” or “do not share this” or “don’t share this” or “between you and me” or “just between us” or ((can’t or cannot or shouldn’t
or “should not” or won’t or “will not”) w/5 (discuss or “talk about”) w/5 (email or e-mail or computer)) or should w/5 (discuss or talk) w/5 (phone or “in person))

There are countless examples in the report.  As discussed here before, common sense is usually the best approach to determining whether your email is environment appropriate, but there is also a second level of screening.  I’ll call it the "smoking gun" screen. How would you feel if the email you just sent was put up in front of a jury and you were cross-examined on its contents?  A far stretch in most circumstances but an issue that should always be in the back of the author’s mind. 

Consideration of what is placed in an email should go beyond avoiding foul language and crude humor.  There are simply some issues that should not be addressed in electronic communications.  It ultimately goes back to common sense – there is no written policy that can provide sufficient guidelines.  Sometimes a phone call or even face-to-face meeting makes more sense than an email that lacks context and fails to adequately convey the issue.

(h/t Jacob Goldstein with National Public Radio)