Forensic Accounting: Finding the Smoking E-mail

Think you have a lot of e-mails? Those who work within the e-discovery process — the handling of electronic information and documents for litigation purposes — most likely have more.

“Many of the smoking guns in a lot of these cases reside in e-mail,” said Catherine Parente, CPA, ABV, CVA and partner-in-charge of the consulting services department at CPA and business advisory firm Carlin, Charron & Rosen LLP. She added that one of the cases she’s currently working on includes four boxes of records, two of which contain printed out e-mails.

Will Keeping Old E-mail Put You at Risk?

There is a mindset among many that retaining old e-mails will put a company at risk. Many reason that e-mails handed over to an adversary during e-discovery, for example, will contain a "smoking gun" that could result in embarrassment or the loss of a legal judgment.

In some cases, this mindset has been proven correct. We’ve seen examples in high profile cases over the years of CEOs and others who have said things in e-mail that they wish had not been available for presentation at trial or during pre-trial motions.

In Search of Better E-Discovery Methods

As the burdens of e-discovery continue to mount, the search for a technological solution has only intensified. The holy grail here is a search methodology that will enable litigants to identify potentially relevant electronic documents reliably and efficiently.

In an effort to achieve these often competing objectives, litigants most commonly search repositories of electronic data for documents containing any number of defined search terms (keyword searches) or search terms appearing in a specified relation to one another (Boolean searches). These search technologies have been in use for years, both in litigation and elsewhere, and accordingly are well understood and widely accepted by courts and practitioners.

Practical Tips On The Discovery Of Electronically Stored Information And Privilege And Confidentiality Problems

Case law continues to evolve on amendments to the Federal Rules of Civil Procedure that became effective in December of 2006. These amendments stated that parties are required to place a litigation hold on all documents and records relevant to a dispute, including electronically stored information, upon a reasonable expectation that a formal lawsuit will follow. With careful planning, parties can effectively address a number of recurring issues that have resulted from these amendments.