E-mail Records: Friend or Foe?

Electronic Mail Snippets Viewed in Context

For honest people, email records can often be their best defense.  Ask Matthew Tannin and Ralph Cioffi, former hedge fund managers for Bear Stearns.  Their detailed email records persuaded a criminal jury to acquit them.  That is, the jury could not find them guilty of fraud or dishonesty, as prosecutors alleged.

Thank goodness Bear Stearns did not follow the common legal advice to destroy email quickly.  Many lawyers recommend deleting email and text
messages quickly because they can provide adversaries scraps of conversation that can be misconstrued and taken out of context. 

Many lawyers and archivists recommend, for example, that email systems be configured to purge email, by default, after only 15 days or 30 days.  Such recommendations are always supplemented with the requirement that employees do something that is impractical – i.e. read all of their emails and promptly take affirmative action to keep those that are important records while allowing the others to be purged.  Experience shows that requirement is routinely ignored in practice because employees just don't have time to follow it.

In the Tannin-Cioffi case, prosecutors said the defendants were dishonest and lying to fund investors.  As evidence, the prosecutors pointed the jury to small passages clipped from emails.  In one e-mail, Tannin observed “simply no way for [the fund] to make money – ever.”  Prosecutors said this statement proved Tannin lied to investors because a few days later he expressed on a conference call his comfort with the fund’s prospects.  Amir Efrati and Peter Lattman, “U.S. Loses Bear Fraud Case,” Wall St. Journal, Nov. 11, 2009.

Some lawyers think juries are so dumb they will consider no more evidence than a few words from an email.

But in fact the Tannin-Cioffi jury considered a lot more.  It evaluated the context of that snippet of words.  It weighed the entire e-mail from which the snippet was clipped.  Amir Efrati, “Bear Loss Besets Prosecutors,” Wall St. Journal, Nov. 12, 2009.  Further, the jury considered many other emails between the men.  The jury noted for example that during the time that the prosecutors said the men had given up on the fund, their email records suggested they were working furiously hard to save it.  The jury focused on one e-mail exchange showing them working at 4 in the morning!

Notice how the detailed timestamp (metadata) on the email saved these alleged white collar criminals from jail.  Old fashioned paper letters did not record such a rich diary of business activities.  Here the electronic diary depicted the defendants doing the right thing. 

For good business people, lengthy, complete email and text message records -- including all the metadata -- are a friend.

The only people who have incentive to destroy their electronic message records quickly are mobsters, the Mafia.  They of course are motivated to toss all the smoking guns and dead bodies into the river.

Update:  Former AIG executive Joseph Cassano is also thankful for plentiful records.  Records saved him from criminal prosecution for allegedly hiding problems with AIG's mortgage-related investments in 2007.  Although prosecutors were on the verge of indicting him, notes taken by outside auditor PwC suggested that he had disclosed the problems.

–Benjamin Wright

Mr. Wright often serves as a public speaker on technology law for groups like CPA societies or Institute of Internal Auditors.  Here is an ARMA podcast describing Messaging Architects' work in e-mail archiving, including its workshop (led by Mr. Wright) for development of an email records policy in an enterprise.

Comments

[Patrick Cunningham, CRM, FAI]

I'm back and this time I've counter-blogged.

http://cunninghamabovetherim.blogspot.com/2009/11/atr-to-defense-of-archives-and-english.html

[Ben Wright]

Patrick: I'm glad your back, and I'm glad you have counter-blogged! The url in your comment does not appear to be a live link. I think I can edit it so it is live. That will let readers be able to click the link to easily jump to your blog post. Thanks! -Ben

[Later...] I can't figure out how to edit your comment so your link is live. But I have made it so readers can go to the link by clicking on your name.

[Ben Wright]

Patrick: In your good counter-blog article, you suggest three categories for e-mail: 1. non-records (junk), which employees have identified and are destroyed quickly, 2. transitory records, which are also destroyed quickly but not as quickly as non-records, and 3. declared records, which employees have specifically identified as important and categorized for retention according to a schedule. I recently led a workshop at a sizable state government agency to set policy on email retention/destruction. The workshop included the records management dept., the legal dept., IT and other stakeholders. The participants in the workshop agreed on ideas that are similar to your three categories. But here's the tough part, which they had to address: What do you do with messages where employees simply have not taken (and will not take) the time to analyze from a records management perspective? Do you treat them as transitory records that get deleted in a year or so? That's very risky because it will cause you to delete a lot of records that are important. The reason is that employees simply will not take the time to analyze records and place them in categories. A GAO study shows that employees will not do it. Hence, the participants in the workshop decided to keep those records (which could represent 75% of the email) for an indefinitely long time. --Ben