E-mail exchanges that create potentially greater legal risks than the original subject risk

John McGuckin, the General Counsel of Union Bank of California, pondering the relationship of compliance and law (Corp. Legal Times, Oct. 2005 at 78), made a statement about e-mail’s legal risks that goes to the heart of what law departments should communicate in writing: “A compliance process that generates e-mail chains identifying, evaluating, debating and, finally, accepting a compliance risk may be fully discoverable and may create another, potentially greater legal risk than the original compliance risk.”

The ad containing this quote does not explain how people within a company, whether the law department is part of the e-mail exchange or not, should spot and think through a risk without leaving a discoverable trail. That is his point, but the worrying residue seems to be that people should not write about risks. (See my post of July 21, 2005 on software that sniffs through e-mail.)

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