If you want to learn which words to avoid in an email, here is a some advice from the Lehman Brothers investigations!

Posted on August 17, 2010

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In one of my previous blogs, I discussed what to expect in so-called FRCP negotiated Boolean queries. The examples were based on the Lehman case. The crux of the article was to address the limitations of search engines for that type of query; which is important to know if you want to bring this part of the eDiscovery process in-house.

While I did some additional research, I found some great articles that I thought were worth sharing: http://www.forbes.com/2010/06/23/lehman-brothers-sec-email-opinions-kevi… discusses how more than 34 million pages of internal Lehman documents, including 4.4 million e-mails were searched by the investigators. At the end of the day, they came up with various words that triggered “interesting emails”. This list included words such as: –“risk” , –“concern”, –“let’s discuss”, –“just between us”, –“breach”, –“big trouble”, –“too late”, and last but not least: –“stupid”.

By also making the bridge to the FBI-ENRON investigations (http://www.zylab.com/default.aspx?Doc=cs/CS64 – FBI Enron Investigation.pdf), the reader can get a really good feel for what the investigators are looking for. Another great read is this one: http://www.businessweek.com/news/2010-06-11/-stupid-lehman-e-mails-didn-…. I love the title and his opening phrase of the article: “Just between us,” it may be “stupid” to use certain words in e-mail to “discuss” the “big trouble” you might face if you’re ever investigated for financial wrongdoing or a subsequent cover-up. Enjoy reading this one yourself.

And as a reminder of the 23 things we should not say in an email, you should read this one: http://www.npr.org/blogs/money/2010/06/14/127829646/23-things-not-to-say…. Here is some valuable advice from the author: “Every e-mail you write could wind up in court. Everybody knows this, but people still act like it will never happen to them. If you can’t help yourself — if you just have to write that incriminating e-mail — you can at least avoid a few obvious red flags.” A comprehensive list of words is shown based on the Lehman investigations.

What can we learn from this? We can certainly train our senior management not to use these words. We can officially forbid using them by means of a corporate email policy. We can create alerts in our email systems if such words are being used and implement direct actions as a means of enforcing corporate policies. But my take is that people will always continue to use email to discuss sensitive topics. Sometimes because they are naïve or ignorant, but also to cover themselves should there ever be an investigation so they can prove that they did “warn” the others that something was wrong. Therefore, at the end of the day, not using email at all may be the only solution to avoid that email communication is used against you. Was it not Ken Lay, CEO from ENRON, who did not use email at all?

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