The e-mail read, “I don’t want to cook the books anymore” and when the author of that e-mail heard that an Ernst & Young employee who was auditing those books was leaving the company wrote in another e-mail “Can you find us another clueless auditor for next year?” The response, “That’s the plan. Worked perfect this year.”
As reported in the March 7th issue of The Wall Street Journal these e-mails are the subject of a 106 count grand jury indictment issued on March 6th of this year against the now-closed New York law firm of Dewey & LeBoeuf LLP and the author of the first two e-mails was that firm’s former CFO Joel Sanders. Mr. Sanders, the firm’s Chairman and its Executive Director were charged with a number of crimes including grand larceny, securities fraud, conspiracy, and falsifying business records. Turns out the firm was 50 million dollars short of meeting the requirements of its bank loan and now the three former officials of that firm could face up to 25 years in prison.
The obvious joke here is that these lawyers better now find some good lawyers.
But there are some other lessons here other than not committing the crimes that the individuals involved are alleged of doing. Almost four years ago I warned on this site about misusing your employer’s e-mail system for personal purposes, a year ago I noted that the Supreme Court upheld the National Security Agency’s right to conduct electronic surveillance for foreign intelligence purposes, including surveillance of communications between persons located within the U.S. and persons located outside the U.S, which in the case of Clapper v. Amnesty International involved the foreign communications of journalists and attorneys, and on July 4th of last year I discussed government snooping in general.
But the Dewey & LeBoeuf case identifies a more elemental principle. E-mails are discoverable. Also discoverable is such other digital evidence as text messages, even deleted text messages, as well as videos and photos retrievable from your mobile device. Just as I wouldn’t post on the Internet that you were leaving town on certain dates on a vacation as doing so might invite a burglary or engage in adulterous activity on your cell phone and then hand the phone to your spouse while you were driving so that you would not be talking on it while behind the wheel. (The latter is a good thing, the former not so good.) I wouldn’t e-mail your marketing department and say; “Hey, I like that logo, it really pops….let’s use something similar for our brand.”
Note the following:
Rule 26 (a)(1)(B) of the Federal Rules of Civil Procedure provides that a party must, without awaiting a discovery request, provide to the other parties, among other things a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment. Rule 34 of the Federal Rules of Civil Procedure states that a party may serve on any other party a request to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control: (A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. Electronically stored information discoverable here would include e-mail records, videotapes, sound recordings, etc.
Note that the materials sought must be relevant and non-privileged.
