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 Seminole County (Florida) Sheriff's 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. On her own initiative she called the in-house lawyer as a witness in a hearing on the question of spoliation. Citing the famous Zubulake case, the judge concluded that the lawyer had defaulted on his duty to ensure that electronically stored information (ESI) was preserved. The judge specifically opined that in a case like this counsel needs consult with IT staff about preserving ESI. The judge imposed a monetary fine on Mr. Lane personally, the amount of which is to be determined. (See The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities for more on a lawyer's professional duty regarding the preservation of e-records and subsequent search through them.)
The judge is saying that modern counsel must understand how ephemeral ESI is and how vigilant counsel (as an officer of the court) must be to preserve it under a litigation hold.
I don’t know how much annual salary counsel to a Florida county sheriff's department makes, but I'll bet the man is not getting rich on his salary. The imposition of monetary sanctions on him makes quite a statement. It is unclear whether malpractice insurance would cover this fine.
A different lawyer at a government agency recently asked me why the record retention policy for e-mail should be different from the policy for paper documents with the same content. I believe electronic records behave differently from equivalent paper records. They must be managed differently. What's more, this Swofford case reinforces my impression that courts are treating electronic records differently. It reinforces my argument that today the law gives all enterprises heightened incentive to retain email generously. No employee of a government agency, whether counsel or otherwise, wants the risk of being held accountable for premature destruction of email.
–Benjamin Wright
Mr. Wright is senior instructor at the SANS Institute, where he teaches a 5-day bootcamp on the law of e-records, cyber defense and computer investigations.
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 Seminole County (Florida) Sheriff's 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. On her own initiative she called the in-house lawyer as a witness in a hearing on the question of spoliation. Citing the famous Zubulake case, the judge concluded that the lawyer had defaulted on his duty to ensure that electronically stored information (ESI) was preserved. The judge specifically opined that in a case like this counsel needs consult with IT staff about preserving ESI. The judge imposed a monetary fine on Mr. Lane personally, the amount of which is to be determined. (See The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities for more on a lawyer's professional duty regarding the preservation of e-records and subsequent search through them.)
The judge is saying that modern counsel must understand how ephemeral ESI is and how vigilant counsel (as an officer of the court) must be to preserve it under a litigation hold.
I don’t know how much annual salary counsel to a Florida county sheriff's department makes, but I'll bet the man is not getting rich on his salary. The imposition of monetary sanctions on him makes quite a statement. It is unclear whether malpractice insurance would cover this fine.
A different lawyer at a government agency recently asked me why the record retention policy for e-mail should be different from the policy for paper documents with the same content. I believe electronic records behave differently from equivalent paper records. They must be managed differently. What's more, this Swofford case reinforces my impression that courts are treating electronic records differently. It reinforces my argument that today the law gives all enterprises heightened incentive to retain email generously. No employee of a government agency, whether counsel or otherwise, wants the risk of being held accountable for premature destruction of email.
–Benjamin Wright
Mr. Wright is senior instructor at the SANS Institute, where he teaches a 5-day bootcamp on the law of e-records, cyber defense and computer investigations.
In this instance, I would suggest that the spoliation has a basis in the crappy legal hold process, rather than because the judge was holding electronic records to a higher standard. Yes, electronic records leave behind much more thorough audit trails and this evidence enables closer examination of what happened to the evidence.
That said, it bothers me that we're seeing these requirements and interpretations that place a much higher standard on electronic records or that seemingly require organizations to archive completely unnecessary information in order to show that nothing has been discarded. We would never require that for paper. But we seem to be willing to do that for electronic records... because we can.
I'm beginning to wonder when someone will get spoliation sanctions because they dare to cart paper records into court. Will we need to demonstrate that the paper records were not "born digital"? What do we do when the records were created electronically eons ago and all that remains is paper? Will judges start tossing paper records because no one bothered to keep the envelopes?
This is really getting to be a slippery slope.
Now all that said, I did read the summary of the case presented by Ralph Losey that you linked. This really seems to be a case about bad legal holds and incompetent in-house counsel rather than a bigger issue about electronic records. But the issues I note above remain. If this had happened 20 years ago, would the judge have sanctioned the lawyer because the Sheriff didn't maintain the deputies' note pads and notes slipped into lockers? Clearly, the stuff that went missing was much more than scribbles on notebook paper, but part of this evolving process is also getting people to understand that the minute they touch finger to electronic device, they may be creating evidence -- not a record, mind you -- but potential evidence that will be hard to dismiss, discard, or ignore.
Frankly, with the proliferation of electronic forms of textual retention of information, we have to really start talking to employees about what they create. You would think that police officers would begin to understand that the instant text messaging capability of their data terminals should not be used to say things that will come back to haunt them... but we see this every day with much of what ends up on the Internet.
Posted by: Patrick Cunningham, CRM, FAI | November 02, 2009 at 11:23 PM