November 10, 2007
The Three Most Dangerous Buttons: Send, Forward, and Reply All
An interesting article from the Fulton County Daily Report (available on Law.com here) discusses the persistent problems e-mails present in cases. While the article largely focuses on employment discrimination cases, the point is equally applicable to white collar crime investigations in which e-mails continue to play such a prominent role. One e-mail discussed began, "This is off the record" -- except, of course, anything in an e-mail is definitely preserved and forever on the record. According to the writer, "The 'send' button -- together with its evil cousins, 'forward' and 'reply all' -- are causing a world of trouble for corporations as they connect to evidence in legal proceedings and create a new mess for in-house lawyers to clean up."
Who among us hasn't regretted hitting the send button on an e-mail, as former New York City Police Commissioner and erstwhile nominee to head the Department of Homeland Security Bernie Kerik has discovered in his indictment (here) on corruption, mail/wire fraud, tax, and false statement charges. How do I segue from e-mail to Kerik? The indictment quotes an e-mail he sent in July 1999, shortly after a meeting Kerik had with City officials in which he defended the bona fides of a company seeking a contract, allegedly in exchange for $255,000 in renovations to his Bronx apartment. Kerik complained about being on "welfare" compared to "John Doe #3" who worked for the company whose virtues he extolled, and then bemoaned the fact that there was still "A b***s*** $170,000., [sic] I had to beg, borrow and [expletive] for the down payment and I'm still [expletive] over the $5,000. [sic] I need for closing." [NB: we're still a family-friendly blog, so naughty words are edited.] Needless to say, the e-mail may be a bit hard to explain.
The Kerik indictment has tax charges that include a claim he did not properly report the "nanny tax," which is the second time now that this has shown up in a criminal indictment (see earlier post here for the first case with a "nanny tax" charge, also in the SDNY). A handy chart provided by the U.S. Attorney's Office (here) outlines the basis for the tax counts. The corruption charges are based on the right of honest services fraud, and there are a number of false statement counts related to Kerik's abortive nomination to be Secretary of DHS, including false statements to White House officials and on federal financial disclosure forms. (ph)
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