Healthcare, Government e-Discovery and E-mail Destruction

Duty to Preserve Electronically Stored Information (ESI)
Standard for E-mail Litigation Hold

When a lawsuit is filed or reasonably anticipated, parties are expected to apply a litigation hold to ensure records are not destroyed.

In a class action case concerning rights to state-paid medical care (connected with Medicare), a federal trial court has criticized Tennessee state agencies (Defendants) for failing to preserve electronic records.  Said the court:

"Defendants left their employees to decide on their own what to retain without evidence of any written instruction or guidance from counsel on what is significant o[r] material information in this complex action.  Under the State's computer system, after six to seven months emails were destroyed.  Some key custodians did not have backup tapes for their work station computer.  Given the complexity of this action, isolated statements [from counsel to employees] about the litigation hold over a period of several years are equivalent to the lack of any meaningful litigation hold." John B. v. Goetz, 2007 WL 3012808 (M.D. Tennessee Oct. 10, 2007), Memorandum, page 126.

The court went on to criticize the inadequate litigation hold at Defendants' contractors.

The court’s statements open the possibility for e-discovery sanctions against Defendants.    

The case reminds how courts can scrutinize e-mail retention decisions years after the decisions are made.  It illuminates the danger when an enterprise leaves retention and destruction responsibility in the hands of individual employees (or contractors), who may not be fully aware of the legal implications of that responsibility.  Accordingly, I advocate generous, centralized retention of enterprise e-mail and text messages.  By "centralized," I mean the records are retained in an enterprise-controlled archive such that employees cannot destroy their individual records.

Here a federal court second-guessed Tennesee state agencies.  But in theory the state involved could just as easily have been Iowa, Oregon, Nevada, Texas, Idaho or any other.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, leading provider of e-mail archival solutions for healthcare.