The SEC investigation of Tyco International for possible securities law violations produced several e-mails. The e-mails focused on two concerns about the company: accounting improprieties and the use of company funds by then-CEO Dennis Kozlowski. The e-mails were written by outside lawyers from the firm of Wilmer Cutler to former Tyco General Counsel Mark Belnick. The e-mails are as follows.

March 23, 2000: E-mail from a Wilmer Cutler Partner, Lewis Liman, to Mark Belnick

There are payments to a woman whom the folks in finance describe to be Dennis’s girlfriend. I do not know Dennis’s situation, but this is an embarrassing fact.

May 25, 2000: E-mail from a Wilmer Cutler Partner, William McLucas, to Mark Belnick

We have found issues that will likely interest the SEC; creativeness is employed in hitting the forecasts.

There is also a bad letter from the Sigma people just before the acquisition confirming that they were asked to hold product shipment just before closing....

(This e-mail also went on to suggest that there was, in regard to Tyco’s financial reports, “something funny which is likely apparent if any decent accountant looks at this.”)

Although Mr. McLucas and Mr. Liman could not comment because of attorney–client privilege, others indicate that they followed up on the e-mails and asked officials at Tyco to correct the concerns and problems raised in the e-mails.

Are the e-mails privileged? How did the SEC gain access to them? Can they be used as evidence? Are they discoverable? (Laurie P. Cohen and Mark Maremont, “E-Mails Show Tyco’s Lawyers Had Concerns,” Wall Street Journal, December 27, 2002, pp. C1, C5)