Migrated from eDJGroupInc.com. Author: Conrad Jacoby. Published: 2014-03-16 20:00:00Format, images and links may no longer function correctly. 

Using plain English

To discuss committing crimes

Not the best idea


One of the driving factors in e-discovery behind the spectacular growth in linguistic analytical tools like concept search, document clustering, and PC/TAR is the simple fact that people don’t all speak alike.  I sometimes buy a grinder for lunch, while my business partner prefers subs, and a Philadelphia-based client of mine prefers hoagies.  We’re all talking about the same kind of sandwich, of course (though there’s some debate over the need for lettuce), but a computer algorithm using key word search won’t necessarily make that connection unless a helpful human being has manually tied these different terms together for it.  A good concept or context search engine, however, will recognize that these terms are often discussed in similar circumstances (e.g., lunch, types of cheese); it will serve up these sandwich terms together, not separately.

Advanced linguistic and textual analysis is also needed because people intentionally avoid using negatively-loaded language in favor of euphemism.  Gangsters don’t kill people, they “bump off,” “erase,” “ice,” “liquidate, “terminate,” and “whack” them (see http://www.squidoo.com/euphemisms-for-death for a much more comprehensive list).  I once worked on a litigation matter where part of the sale force had been actively exchanging hard-core pornography via corporate e-mail and company file servers.  They had avoided detection in part by referring to their files as “patio furniture,” where each specific item (tables, lawn chairs, chaise lounges, etc.) served as code for the specific prurient acts that were pictured.  And, of course, white collar criminals don’t send e-mail messages to one another about how they plan to commit fraud, cook the books, and engage in other obviously illegal acts. 

Or do they?  On March 6, 2014, the New York County District Attorney’s Office filed criminal charges against four senior members of the management team for ex-law firm Dewey & LeBoeuf, alleging that they had engaged in a criminal conspiracy to commit accounting fraud.  Incredibly, these lawyers had conducted extensive discussions via e-mail about their activities, including such amazingly blunt statements as “I don’t see how we’ll get past the auditors another year” and “…I don’t want to cook the books anymore. We need to stop doing that.” 

How do you react to such blunt and unenlightened disclosure of criminal activity?  These men were intelligent, even gifted, lawyers with years of practice. They helped manage a law firm that was well-known for its expertise in defending white-collar criminal defendants and representing parties involved with (or the victim of) alleged securities fraud.  And yet, these men violated just about every basic principle of communicating while allegedly committing white-collar crime and fraud:  they kept in touch via e-mail, creating a lasting electronic trail; they sent these email messages via their business accounts (no shady Yahoo!, Gmail, or AOL accounts here!); and they described their ongoing unlawful activity in plain terms as if no one could possibly overhear them. In the early 1990s, such behavior might have been rational.  Twenty years later, not even my pre-adolescent children would consider this a wise strategy.

On the plus side, can you imagine the surprise on the SEC investigator’s face when an obligatory “we do this even though it never finds anything relevant” key word search for “cook w/2 books” turned up relevant documents?  At least in that one regard, these four lawyers really made someone’s day.

Conrad Jacoby – eDiscovery Expert Consultant – Seventh Samurai 

Contact Conrad at Conrad.Jacoby@Seventhsamurai.com

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