County Underestimates Value of Its Own E-mail Records
Some public agencies don't realize that in litigation their own good records can be their best defense.
Commonly a defendant in a lawsuit is reluctant to search through its e-mails – and incredulous that a court would force it to dig deep for them. In Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007), a New York county made the process of e-discovery excessively difficult and expensive for itself.
Plaintiffs sued the county for allegedly barring them from participation in a real estate auction to which they were entitled. After the lawsuit started, the county did a poor job of preserving its e-mail records. Then, when the plaintiffs demanded – in the “discovery” phase of the lawsuit -- that the county search for and disclose relevant e-mail, the county faltered. It initially turned over only two e-mail records.
The plaintiffs complained repeatedly to the judge. The judge insisted that the county search for and turn over e-mail records.
Eventually, the county complied. It hired an outside e-discovery consultant, who restored 417 backup tapes, and found 2,403 pages of relevant emails and attachments. The restoration and searching of backup tapes is very expensive.
Despite this expenditure by the county, the plaintiffs were still able to show that the county had lost some relevant e-mails. The court therefore ordered the county to pay the legal costs plaintiffs incurred to force the county to conduct a thorough search for e-mail records. The court said the county should have implemented a litigation hold from the start of the lawsuit, but it didn't.
Notably, the e-mails that the county did recover tended to support the county's side of the case.
Analysis: The county would have been better served if, as a matter of policy before the dispute started, it had competently archived all of the e-mail of important employees. A good archiving system would have allowed the county to possess and easily find the relevant e-mails – including those that supported the county's position. It would have obviated the need to restore backup tapes.
Further, the archival of plentiful records would have avoided the complaint that the county had failed to implement a proper litigation hold. And that would have prevented the county having to reimburse the plaintiffs' attorneys fees.
When making a public information records request in Texas, are there any ways of checking the completeness of the information provided by the government agency? In Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007) the county withheld documents do you know how the absence was discovered?
Posted by: Jim Ash | February 05, 2009 at 10:14 PM
Toussie was a lawsuit, not a freedom of information request. In the e-discovery phase of the lawsuit, the county turned over only two e-mails -- which seemed suspcious. In this modern age, virtually any knid of transaction in government is likely to cause the creation of numerous e-mails. I speculate that the plaintiff in the lawsuit then complained to the court ("your honor, it strains credulity to believe that there were only two e-mails in this matter"), and then the county sorta acknowledged to the court that it had not conducted a really thorough search. This acknowledgement caused the court to act.
With respect to Mr. Ash's FOIA question, I'll offer a speculative answer, which is not specific to Texas or any particular situation: Let's say a citizen has requested information under a FOIA and government has responded by turning over some records. I'll bet that if the citizen can show it is likely some records are missing, then the citizen can force government to conduct a further search. Ways to show records are missing might include: 1. admissions by government employees; 2. logical gaps in the records that are disclosed (e.g., the records refer to, imply the existence of or hint about other records that were not turned over; or maybe gaps in dates on documents suggest that something must have been happening during the gaps, but records were not divulged with respect the the activity during the gaps); 3. statements by other government agencies (such as other counties) that in situations like the matter in question the agencies normally possess additional records.
I speculate that if a citizen sues government under FOIA and shows the court (through logic or evidence) that government is not being thorough in responding under FOIA, then government can be forced to explain itself under the rules of civil procedure governing the lawsuit. An example of forcing government to explain itself might be a deposition of government employees to get them on the record, under oath, about how well (or poorly) the search for FOIA records was conducted. --Ben
Posted by: Benjamin Wright | February 06, 2009 at 08:49 AM