Electronic Data Records Law | How to Win E-Discovery

FOIA Meets Electronic Mail

Publish Internal Records on the Web?

Freedom of Information Act requests will eventually motivate governments will publish on the web large portions of their official records, including the emails and text messages of officials and administrators.  Federal, state and local governments are being swamped with FOIA requests for email records of officials like county commissioners.

As more and more of these records are released to the public, people publish them on the web.  AnnArbor.com, a news organization, has assembled and published more than 2700 pages of emails of the city council members for the municipality of Ann Arbor, Michigan.  The records cover messages exchanged among members during the council’s public meetings.  The municipality had released the e-mail records, piecemeal, on paper in response to numerous FOIA demands over time.  The news outlet then gathered them from the various requesters, scanned them into digital form, organized them and published them on the web.  As a consequence government became more transparent in that city.

As technology advances, and as activists make more use of FOIA, . . . 

Treat Electronic Records the Same as Paper Records?

In-house Local Government Counsel Sanctioned for Spoliation

Courts seem more assertive in punishing electronic spoliation than they historically were in punishing the spoliation of paper documents.  Many veteran lawyers will be astonished to hear that a federal judge sanctioned an in-house government lawyer for taking something less than vigorous steps to cause and monitor the preservation of electronic evidence.

Prior to filing a negligence lawsuit against a county sheriff’s department (Swofford v. Eslinger), the plaintiff demanded by letter that all evidence including electronic records be preserved.  General counsel for the department, David Lane, forwarded a copy of the letter to six senior officials in the department. Still, the department subsequently destroyed relevant e-mail records and wiped the hard drives of relevant laptops.  

The judge was highly suspicious. . . 

Whistleblowers and Digital Records Force Transparent Governance

Public Disclosure Defuses Scandal

Publish FOIA Response?

Technology motivates any publicly accountable organization (nonprofit, corporation, government) to adopt a radically open style of governance.

Owing to email, data logs, text messages and the like, the quantity of official business records ascends skyward, while the granularity of those records grows ever more fine.  Detailed within these innumerable records are the secrets of the organization.

Stored this way, secrets are dangerous.

Keeping secrets –- or just withholding information -- is becoming harder and harder.  Secrets and records can leak out . . .

How to store e-mail long term?

Is Archival Affordable?

As a mere lawyer, I struggle to understand from a technical perspective how to implement e-mail retention policy in a larger organization across many years.  Legally, the organization may – due to litigation hold or other factors – have incentive to store some (maybe a lot) of email a long time, more than five or seven years.

Legally speaking, the biggest mistake with e-mail records is to destroy them too early.  That could be spoliation. So why not delay destruction a long time?

In theory long-term storage of much e-mail should not be expensive because the cost of raw storage is dropping. However, IT folks in my SANS courses argue . . .

Structured Finance Computer Documentation

Email Evidence in Lawsuits over Financial Derivatives

The treasury departments of local governments and institutions like private schools have fresh reason to keep their electronic mail for a long time.  Sometimes these institutions enter complex financial transactions – derivatives, credit default swaps and the like.

To the players in this “structured finance” market, the bad economy brought surprises.  The trades they made did not pan out as expected.  A rash of lawsuits has emerged, and the lawsuits have revealed that the documentation for the trades is often confused or lacking.  Claire Coe Smith, "Complex Investments Spur Lawsuits in Europe," Wall St J., 28 Sept 09.  

A litigation lawyer quoted in the Wall Street Journal observes that in case after case, the formal documentation for these complex trades did not match the intent of the parties.  Under close inspection, the formulas written into the contracts don’t work, or the sheer words of the documentation do not . . .