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June 20, 2008

Is E-Mail Evidence Less Persuasive?

Cioffitannin I suppose it says something about your status in life if you are pleased or appalled to see Wall Street titans with eight-figure incomes taken away in handcuffs and booked.  It's a bit like the lawyers in Qualcomm v Broadcom: we can identify with them until the lying starts, and then we no longer see ourselves in their moccasins.

This time it's two Bear Stearns brokers who ran a subprime hedge fund.  Ralph Cioffi and Matthew Tannin did the perp walk in Brooklyn early yesterday morning.  In a New York Times article this morning, the case against them is described as built upon e-mail exchanges where they confide grave misgivings about the integrity of their fund while making rosy projections to their clients.  Enron's Ken Lay lives on in the minds and hearts at Broad and Wall.

What caught my attention were the misgivings expressed in the article about the ability to secure convictions based on e-mail (pointing to the Frank Quattrone debacle). 

Is e-mail evidence really less persuasive to juries?

The second tidbit that put matters in perspective for me mens rea-wise was this one:

A few days later, Mr. Tannin, who was known within the group as a worrier, sent an e-mail message to Mr. Cioffi in which he suggested closing down the funds after a report showed that the securities they were holding were rapidly losing value. “If the report was true, the entire subprime market was toast,” he wrote to Mr. Cioffi. The subprime market looked “pretty dam ugly,” he wrote from his home, early Sunday morning.

It was a radical proposition from one of the funds’ managers, and Mr. Tannin took the precaution of not using Bear’s e-mail system, prosecutors said. He sent the note to the e-mail account of Mr. Cioffi’s wife.

How's that again?  He sent it from his home computer to the other guy's wife's system to steer clear of the company server?  Do you imagine opponents and judges won't remember that next time someone demands you forensically preserve information on employee home computers, including their spouse's and kids' systems?  Mr. Tannin just cost our clients a bunch of money, even if they weren't invested in his BS fund. ("BS" here means "Bear Stearns," though I can appreciate why you might think otherwise).

If those weren't enough lessons from these intrepid misadventurers, the misspelling of "damn" as "dam" further underscores the limits of keyword searches and the importance of including common misspellings in your search term lists.  Savvy searchers know that they're more likely to turn up smoking guns if they look for the salty language that often punctuates revealing missives; so, I expect we'll be seeing "dam" and "WTF" and a lot of other rhapsodizing in blue on proposed keyword lists.

Did I mention that the 46-year old mistyping/misspelling Mr. Tannin is himself a lawyer and a former California Appeals Court clerk?  Misspelling: It's not just for IM-ing Gen-Xers anymore!

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Comments

This is a shocking gap in the knowledge of eDiscovery capabilities. Thank you for pointing this out. Lawyers should know better, right? But, according to Dennis Kennedy, 65% of all lawyers never issued an eDiscovery request, and 35% never answered one. I am doing my best to educate them :)

Mark:

You're doing a splendid job educating lawyers. I didn't really see the point about the perp being a lawyer as going to his knowledge of EDD--after all, this guys wasn't practicing law, instead making much more money doing something else. I added it because it bothers me that someone with a doctorate can't spell "damn." Granted, he may be a great speller and simply mistyped as we all do--but that still goes to the need to anticipate common spelling and typing gaffes and build them into the search protocol.

Good story and analysis. Seems like everywhere you look there is an e-discovery component.

Like you, I disagree with the Times assertion that email cannot persuade jurors. It looks to me like this other Ralph is toast.

I think what fails to persuade jurors is evidence out of context, and too often, email is presented in this way. Unlike the formal paper memos of a bygone era, email is often dashed out in haste. And jurors use email too and know that this is the case! They know intuitively that its formal evidentiary weight to convey someone's view of "truth" is inherently inferior to that of a carefully crafted document that was re-written a few times before being captured forever. The challenge all of these cases underscore is to put email (and other electronic evidence) in context so it can be understood, not undermined.

I disagree with Jonathan's assertion that an email "dashed out in haste" is an inferior means of establishing what someone was thinking in comparison to a "carefully crafted document". In fact, I don't just disagree, I think the exact opposite!

The normal reason a document is carefully crafted is to ensure that the message it delivers is exactly the message the author wanted to convey. A hastily composed email, on the other hand, is more likely to reveal the unreconstructed thoughts of the author at that time about the subject under discussion.

Both are equally telling for different reasons. What can be most enjoyable when one has access to the public (carefully crafted) thoughts *and* the private (hastily penned) thoughts and their is evident conflict between them! Of course, if the author is your client it is not quite such an enjoyable experience.

A hearty "hear, hear" to Jonathan Maas' point. E-mail messages are indeed the modern vehicle for res gestae statements; that is, spontaneous exclamations made with such proximity in time and circumstance to exciting events (res gestae meaning "things done") as to be deemed trustworthy. When such statements are made orally ("He said 'Made it, Ma! Top of the world,' then the tank exploded."), we accord them the special status of being an exception to the hearsay rule. They have (in Colbert-speak) greater "truthiness." It's the obious lack of deliberation that insulates them from charges of guile and fabrication.

I also see e-mail messages as reflective of the writer's truest immediate sense of the facts, free of the varnish and polish that gets ladled on when we realize we may have to defend the remark. It may be a hasty and inaccurate rendition of facts, but it's a nearly perfect mirror to emotions.

And apologies for spelling "there" as "their". It wan't hoppen agen.

I don't believe that misspellings are going to be unintentional, much like the use of home servers, children's laptops, and obscure acronyms. The ED industry is going to have to work harder to truly "discover" the secrets in light of evolving EDD cases. This is going to give a whole new meaning to the reach of the subpoena power and to the creativity of the text searches applied to the documents retrieved. Am I giving too much away?

P.S. I've also kept a list of words that attorneys have spelled wrong.
They include:
attornies (pl. attorneys)
superfulus (for superfluous)
sole (for soul)
grammer (for grammar)

In the end, your stream of consciousness in an email means relatively little in the production of email(s) in discovery. Finding the relevant email, and deciphering it is what will matter most, not whether the CEO was "thinking about what he wrote at the time, or was eating a bagel and just tapping keys like a golden- parachuted monkey".
It is assumed that you wrote EXACTLY what you meant in ED emails.
Except the one you wrote to Bob that you cheated on your wife last night. Stream of consciousness? Personal stuff.

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