Law Bulletin Publishing Company’s FCPA Conference Highlights a Study of the Alstom $772 Million Criminal Penalty Case.  Where was the smoking gun?  In the Emails.

As usual, the Law Bulletin Publishing Company’s Annual White Collar Crime and Corporate Governance Seminar in Chicago was outstanding and featured panelists including Dan Webb and other elite Chicago attorneys.  This year’s program provided insight into the recent FCPA conviction of Alstom S.A., the French multinational firm that pleaded guilty to violations of the FCPA and agreed to a record $772 Million criminal penalty.  Alstom was found guilty of offering $75 Million in bribes through “consultants” to win $4 billion in power generation facility business in Indonesia, Saudi Arabia, Egypt, and the Bahamas.  In addition, five senior executives of Alstom were personally charged.

E-mailThis was a well-covered case, one you have most likely heard about previously.  But what you may not have known is the prominent, but not surprising, role that recovered Electronically Stored Information (ESI) played in the case.  Consider the compelling nature of one recovered email…

On or about December 2, 2003, after receiving an email from an Alstom finance employee stating that she could not process the invoice for “Consultant A” because there was insufficient proof of the services provided by “Consultant A” to justify payment of the invoice, an Alstom US Project manager called the Alstom finance employee and stated if she…

“wanted to have several people put in jail [she] should continue to send emails as [she] had earlier in the day.”
The project manager further instructed her to delete all emails regarding the consultant.   Oops.  This conversation and related emails provided serious ammunition in the DOJ’s complaint against Alstom, filed on December 22, 2014.

The volume of relevant ESI continues to explode.  The sources or “containers” of this often dramatic ESI is changing and expanding rapidly, and mobile devices such as tablets and smartphones continue to multiply the arena of relevant ESI by vast orders of magnitude.  As new sources of ESI play an increasingly important role on the litigation stage, however, (think text messages and social media posts, for example) the “old fashioned” email trail continues to dramatically influence the outcomes of many cases.