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Still, legal experts say executives and others could end up getting bitten when they hit "Reply." Law professor Richard Painter of the University of Minnesota says e-mail will continue to be admitted as evidence and play an important role, particularly in white-collar prosecutions. "The fact of the matter is that people say things they shouldn't by e-mail," says Painter. "So as long as we continue to use e-mail, you are going to see it in cases...
Nevertheless, the days of e-mails driving prosecutions may be coming to an end. Eliot Spitzer exploded e-mail onto the legal scene in the early part of this decade. As New York attorney general, Spitzer used internal e-mails sent by analysts to prove that Wall Street firms were pushing stocks their professionals didn't believe were good investments just to generate investment-banking fees. In one famous case, former Merrill Lynch analyst Henry Blodget told investors to buy stocks about which he privately wrote in e-mails to colleagues were "horrible," a "disaster" and a "POS," or piece...
Since then, e-mail has played an increasingly important role in prosecutions. Unlike wiretaps, e-mails eliminate the problem of entrapment. They are records of what someone was saying voluntarily, on their own. Accounting firm Arthur Andersen was indicted for its role in Enron's financial fraud in part because of an e-mail that told employees to eliminate any unnecessary paperwork. A shredding party ensued. In the Martha Stewart insider-trading case, jurors said one of the more damaging pieces of evidence had to do with the fact that Stewart tried to alter an e-mail that had been...
...wake of the financial crisis, prosecutors again hoped e-mail would point to wrongdoers. In mid-2008, the Securities and Exchange Commission released e-mails that seemed to show that analysts at credit-rating agencies understood that the mortgage bonds they were rating AAA were actually much riskier than that. An analyst wrote to a colleague, "Let's hope we're all wealthy and retired by the time this house of cards falters." However, no criminal charges have been brought against rating-agency officials. (See 25 people to blame for the financial crisis...
Then there is the case against Cioffi and Tannin. In April 2007, Tannin told Cioffi in an e-mail that there was "simply no way for us to make money - ever," for investors in their fund. Then several days later, Tannin told investors in a conference call that he was "comfortable" that his fund would continue to go up. The e-mail makes it look like Tannin was lying to his investors, but the e-mail that prosecutors cited was just one of many between the two managers. At other times, the managers seemed to be less sure that...