An Electronic Voyage of Discovery


The smoking gun.

More often than not, that’s how e-mail is perceived by lawyers on both sides of litigation. Consider the example of the deleted e-mail recovered by a computer consultant, in which a company president wrote to an employee’s manager: “I don’t care what it takes. Fire the b****.” The result? A quick and lucrative settlement for the plaintiff.

Examples of this kind abound. There’s something about the pithy, spontaneous character of e-mail that lures otherwise rational people into saying things they would normally never put in writing. Would any company president have drafted a similar message in a formal memorandum? Not likely. But e-mail has the feel of casual conversation that is both private and easily forgotten – when, of course, it is neither. And lawyers know it.

Not surprisingly, e-mail and other electronic records have become the next wave of discovery in litigation, as each side hunts for the telltale message that will undermine the arguments of its opponents. For businesses, this means understanding and managing the risks of e-mail in two ways: first, learning how best to make use of electronic discovery when in litigation; and second, developing a plan to better manage electronic records on an ongoing basis to reduce expense and exposure.

Discovery Channels

The first task in developing a plan for electronic discovery is to learn as much as possible (through depositions, interrogatories, and informal inquiries of both business and technical personnel) about how the other side manages its data. This includes specific information related to networks, backup systems, workstations, laptops, home computers, and software – all of which may contain relevant information.

Because of the highly technical nature of this research, you may wish to consider bringing in an outside expert both to draft an investigatory plan and conduct the actual examination of recovered material. There are several advantages to doing so:

  • An expert can duplicate the media for analysis without altering the original. Never conduct an investigation on the original media, since you may end up changing such key systems statistics as the last date a file was opened or revised.
  • An expert can recover data from obsolete systems, unearth data that has been “deleted” from the media, and provide evidence of tampering or selective disclosure.
  • An expert can not only find the data, but also learn information about the data, such as when it was created, who accessed it and when, and all copies which were made.

But remember that technology research is only part of the challenge: it’s just as important to understand the people with access to relevant information and how they work and process data. Many executives store data directly (knowingly or unknowingly) on their office hard drives, or in remote media such as home computers, laptops, and palm computers. Often, this information may be more illuminating than material stored in network files – or it may be the only record of data that has otherwise been deleted because of document retention policies.

Once you understand the dimensions of data available, you can hone in on a focused discovery request for e-mail and electronic data. Be wary, however, of overly broad requests that may encourage the other side to drown you in mountains of irrelevant information, from which even an expert may have difficulty distilling important facts or messages. On the other hand, keep in mind that, the more specific your request for discovery materials, the more you telegraph your strategy to opposing counsel. Preparing a discovery request means walking a fine line.

In requesting electronic material, you should also be careful to stipulate any steps the other side should take to avoid deliberate or accidental destruction of key information. This may include not recycling old backup tapes, shutting down routine document destruction, suspending systems maintenance or “defragging” activities that might overwrite data, and not installing new software on machines or networks subject to discovery.

A final lesson: be speedy. Electronic data can be readily changed and can quickly disappear. Try to get the materials you need without delay.

Electronic Pack Rats

Of course, this strategy cuts both ways. It’s just as likely that your business will also be the target of electronic discovery and that savvy plaintiffs’ lawyers will develop the kind of effective discovery request described above. The question is how to avoid giving the opposition a wealth of “electronic litter” that may contain out-of-context or colorful nuggets that can be used to sway a jury. In addition, with an eye on the bottom line, you should manage your data in a way that will allow you to retrieve cost-efficiently information needed in litigation. Chances are, the cost of sifting through dense electronic archives won’t deter a court from making you do it – so be prepared.

The quick answer is: don’t be an electronic pack rat.

While electronic files may not occupy the physical space of overstuffed file drawers, they can contain even more information. And because of the ease with which it can be copied and distributed, electronic data can be very difficult to destroy. As a result, you need to sensitize your decision-makers to the litigation threat represented by e-mail and other electronic documents and put in place a sound electronic document retention policy.

First, develop electronic mail policies and make sure that these policies are regularly broadcast to and acknowledged by employees. One of the goals of an e-mail policy is to reduce the sense of privacy employees may feel communicating electronically. If employees know that the company has the right to look at any of their e-mails, and that deleting an e-mail does not mean it’s been deleted forever, then they will be less likely to consider e-mail a “secure” form of confidential communication – and therefore less likely to engage in spontaneous messages that may cause future embarrassment or liability. Obviously, from an employment liability standpoint, the policy should also prohibit defamatory, harassing, or obscene communications by e-mail. And to reduce the risks of security breaches or hidden discovery dangers, maintain strict policies regarding information that may be copied to computers outside the office. (Even the CIA belatedly learned this lesson.)

The next step is developing and executing a company-wide electronic information and document retention policy. This plan should involve several components:

  • Efficiently organize electronic data, including backup materials, for easy retrieval if needed (for litigation or other purposes);
  • Identify and preserve necessary business documents and keep other extraneous material to a minimum;
  • Designate individuals or departments to track and monitor electronic records retention;
  • Limit the number of e-mails that may be saved in employee folders and limit the duration of all e-mails;
  • Regularly destroy old e-mail and voice mail files according to a set schedule (and make sure they’re really gone);

In other words, your goals are to discourage employees from making ill-advised statements in e-mail and to make sure that e-mails themselves don’t linger any longer than necessary in corporate records.

Admissibility

Although e-mail has become a universal business tool, electronic records uncovered in litigation aren’t automatically admissible in court. Because of the ease with which electronic data can be altered, lawyers wishing to use e-mails at trial must also take care to authenticate the integrity of the information. This may include testimony verifying the circumstances surrounding the e-mail, electronic characteristics or internal logs supporting the integrity of the file, or a demonstration of the process used to produce the message.

Authenticating e-mails isn’t always easy. In the recent Democratic senatorial primary in Minnesota, investigators went to great lengths to ascertain the source of “anonymous” e-mails intended to undermine one of the candidates – including tracking phone numbers used to access Internet accounts.

The second challenge is overcoming the rule against hearsay. Courts have been split as to whether the business record exception to the hearsay rule applies to e-mail, and to the extent that an e-mail is used to prove the truth of an issue, it would likely be excluded as hearsay. However, this limitation offers little comfort for businesses on the receiving end of discovery requests. E-mails are most often used to impeach the credibility of witnesses by confronting them with their own words – and hearsay offers no exclusion for this approach.

The best defense? Remind your employees not to put anything into an e-mail that they wouldn’t want to see again in court.