Have We Learned Nothing About Emails?

Seen in cave paintings,

and on hieroglyphic scrolls:

“Let’s go commit crimes!”

When I started in the eDiscovery vendor world, my boss asked me to create a PowerPoint presentation featuring big block quotes drawn from imprudent emails by various criminal conspirators. We found quotes from Wall Street white collar criminals. We found quotes from Enron, of course. And we even had some fine Jack Abramoff quotes.

We would show these slides at the start of our standard pitch presentation (except when we were meeting with companies or firms whose people we were quoting – Thank you Microsoft for the quick “Hide Slide” function!). Our goal was to convince the lawyers in the room that emails were potential evidence that could be used against them in cases. We believed that lawyers at that time didn’t think emails were dangerous—and we were right: the slides always generated lawyers’ nervous laughter, and, more importantly, their attention.

That was almost ten years ago. Since then I began to assume that everybody had finally figured this out, and that it would be useless or even pathetic to keep bringing up “scary” emails – like Count Floyd’s pathetic “Scary Stories” on the old Second City TV.

Until now.

Just weeks ago, the New York County District Attorney filed criminal charges against four former lawyers and leaders of the now-defunct Dewey & LeBoeuf, based in part upon emails the four had sent and received. The emails contain such gems as “We need to hide this . . .” and, my favorite (in response to a warning that the firm was about to run out of money): “Ugh.”

This got me wondering, “When will we learn?” And as well about who “we” really includes. Nearly every time an eDiscovery figure is interviewed about the state of the industry, we’re asked, “Do lawyers need to learn more about eDiscovery?” The answer is always some form of “Yes,” often with great emphasis, finger-wagging and the like.

But who’s the “we”? If it doesn’t include lawyers in the eDiscovery community, (by the way, only a small percentage of the lawyers and legal professionals in the country), does it mean that everyone else still hasn’t figured this out?

Based upon abundant evidence that seemingly smart and powerful people keep saying stupid things over email, I would have to say that yes, most people still haven’t figured out how badly they are shooting themselves in the foot It’s also probably time to admit that they won’t learn. All of us are too casual about email (not to mention IM); it’s just too easy to type something and hit “send” before you realize that it was a bad idea. I’ve done it myself, and more than once.

Eight years ago, I saw a demo of a system that bolted on to enterprise email systems and could monitor – and block – emails containing phrases that matched “trouble lists.” And yet, that product went nowhere, and I’m not sure it’s even still on the market. I know of several companies today that are said to be working on such systems, and one that announced something just last week (My tip of the hat to you, Product Manager, on your amazingly lucky brilliant timing).

At this year’s LegalTech NY, an awful lot of companies seemed to be looking for new use cases for their technology, especially ones that aren’t subject to the brutal downward price pressures that ESI collection, processing, and hosting face. Rather than trying to invent new problems to solve, maybe they can provide a solution to this one?

Michael Simon is an attorney and eDiscovery expert consultant with Seventh Samurai. He also teaches eDiscovery at Boston University Law School.