Email is Still the Best Evidence Around – Just Ask Tim

I remember attending a four-hour “corporate sensitivity” training session at a previous company back in 2005.  The entire company dreaded the session, which was intended to make us aware of how we should (and should not) behave, as they viewed it as wasting four hours telling them things they should already know…be sensitive to others, no pornography, respect those of another gender/religion/race/body type, no flame email messages, etc.   Not surprisingly, the session was led by an attorney well-versed in labor law who did a very good job of telling everyone how badly things could turn out if they behaved inappropriately.  He seemed to spend a disproportionate amount of time focused on email, explaining how misguided email messages could sink not only our company but our careers.  His parting admonishment, which I thought was so compelling that I have repeated it at countless eDiscovery events, was as follows: assume every email you write could end up on the front page of the Wall Street Journal or New York Times.

To those who have litigated in the past ten years or have supported such litigation, the fact that email is the most common form of evidence is so commonplace as to be cliché.  The reasons are fairly simple: authentication of email is straightforward in most cases, absent fraud it is clear who “said” what, to whom and when, and the written word is capable of multiple interpretations – especially cryptic messages, like Twitter…but don’t get me started on that.  And email has the wonderful ability to make a witness testify against themselves (“So Mr. Smith, are you really trying to convince us that this message sent by you on December 10th at 4 PM does not actually say what we are all looking at on the screen in front of us?!”).

So it was with no small amount of irony that the first story I saw in today’s Wall Street Journal – “Emails Show Fed’s AIG Angst”, under a picture of Treasury Secretary Timothy Geithner – focused on an alleged effort by the New York Fed to hide particularly unsavory details about the Fed’s bailout of AIG last year.  Not to be outdone, Corporate Counsel magazine wrote an article on the same topic yesterday which was picked up by ALM (“E-Mails Show New York Fed Lawyers' Push to Hide AIG Details”).  But while the power of email evidence remains the same, the behavior – especially of people ostensibly leading our economy who should know better – may be the most surprising element of the story.  Tim Geithner is about as sophisticated and educated as one can get, and even he fell victim to the quicksand that is email.

Back in 2005, we thought everyone knew email was something to be used carefully and with scrutiny…yet here we are five years later watching one of our most important financial leaders being forced to explain why he allegedly tried to hide something, tripped up by his own hand.  I guess the more things change the more they stay the same.