Costly E-Discovery in Backup Tapes
Commonly a public agency destroys e-mail relatively quickly, while expecting individual administrators and professionals to keep needed records as a special exception. Then, when hit with a lawsuit, the agency assumes individual employees can be told to save e-mails that are relevant to the lawsuit.
But this approach is not faring well in court, in good part because employees are not talented at keeping records. The approach can lead to sanctions in court, or a requirement that the agency undertake the expensive task of digging through network backup tapes.
Consider for instance the plight of the Washington Metro Transit Authority (District of Columbia region).
A civil rights group representing disabled passengers sued the authority, alleging it provided too few para-transit services. When the litigation started, the transit authority implemented a “litigation hold”. It told employees such as engineers to keep relevant e-mails. (In practice this meant employees would sequester selected e-mails in PST files.)
The authority did not have a central facility for long-term archival of e-mail. Its central e-mail storage kept records for only 60 days.
Eventually, under the e-discovery rules of litigation, the plaintiff demanded that the transit authority search for and turn over all e-mail relevant to the lawsuit. It was learned, however, that employees had not done a good job keeping their e-mail. Records were lost.
The court took this matter seriously. It ordered the transit authority to sift through voluminous backup tapes in search of missing e-mails. The court over-ruled the objection of the transit authority that to search through network backup records was unduly expensive and burdensome.
(Disability Rights Council of Greater Wash. v. Washington Metro. Area Transit Auth., 2007 WL 1585452 (D.D.C. June 1, 2007).)
Our legal and political culture harbors a deep belief that if records were created, they need to be retained and disclosed for the purpose of resolving disputes.
Courts judge records management decisions retrospectively, in other words, with 20/20 hindsight. Judges evaluate a party’s record retention and destruction practices after they have been implemented.
What this means in practice is that organizations are at risk. If a government entity makes a record-keeping mistake, it can be punished for failing to possess or find the records that a court later believes should have been preserved.
Hence, government agencies (all enterprises, really) have incentive to give themselves a margin for error and store more. They also have incentive to store records centrally, so as to take decisions about storage and destruction of e-mail records out of the hands of individual employees.
--Benjamin Wright
Mr. Wright is an advisor to Messaging Architects, specialist in Groupwise data restoration.
Comments