Electronic Data Records Law | How to Win E-Discovery

Network Backup as E-mail Repository

Expensive E-Discovery (EDD) for an Enterprise

IT network backup can store many e-mails that are relevant and discoverable in a lawsuit.  But to search for e-mail by way of network backup is very inefficient.  

Sometimes, courts do order organizations to go into backup to retrieve computer records - to the vexation of the IT department. The risk that such an order might someday come is one reason for an enterprise to keep plentiful e-mail archives in a system specifically designed for storage and search of large volumes of records.

This risk applies to lawsuits both in the US and elsewhere. A case in point is the Australian decision BT (Australasia) v State of New South Wales & Telstra, [1998] FCA 363 (9 April 1998). 

In a commercial dispute between telecommunications carriers, the plaintiff demanded e-mail records from defendant Telstra. Telstra’s records of many of these e-mails were available only in network backup. The court ordered Telstra to search backup tapes, at considerable expense, to retrieve certain e-mails.

Telstra did not have to design its e-mail system so that backup was the archive.  Had the company, as a matter of routine policy, treated its e-mails as durable assets of the company – preserved in an archival appliance that allows for easy records search and management – it would not have been forced to rummage through backup for e-discovery.  

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, leader in email record retention, recovery and investigation.  See free, recorded webinar.

Local Government Email | Freedom of Information Act

E-discovery under State Open Records or Sunshine Laws

Police Video Records

Increasingly, public agencies are required to search for, locate, uncover and turn over e-mail records in response to freedom of information and open records requests.  

Generally speaking, under either state or federal law, a freedom of information act requires government to disclose requested records to citizens.  Sometimes a FOIA might be known as (or associated with) an open records act or a sunshine act.  

One example: A Kentucky judge required state government to give a man copies of e-mails between his wife, a state employee, and another state employee whom the man suspected was having an affair with his wife. (Associated Press, “Judge: Ky. Man Can See His Wife's E-Mail,” Nov. 20, 2007.)

Another example:

A newspaper requested under Arizona’s open records law access to records of e-mail by a county official on county computers. The official fought the request, claiming the records were personal and therefore not subject to disclosure. The Arizona Supreme Court held that the records must be shown to a trial judge. The judge should then decide whether they are personal records (deserving of privacy), which are to be withheld, or public records. (The Reporters Committee for Freedom of the Press, "Judge must decide whether e-mail is private," April 27, 2007.)

Third example:  A West Virginia judge held the state's FOIA required the state to release e-mails of the state's Supreme Court Chief Justice. The justice had send the e-mails from his government account to the head of a private coal company.  (The Reporters Committee for Freedom of the Press, "Even high court subject to FOIA in West Virginia," September 18, 2008). Although the released e-mails did not pertain directly to the court's internal administration or cases pending before the justice, they touched on more than merely personal matters.  They at least mentioned upcoming supreme court elections.

To respond to these requests takes time and resources on the part of agency IT staff. Haphazard records management makes the job more difficult.  Agencies therefore have incentive to keep organized, searchable e-mail records.  And they are wise to insist that all employees (including governors and supreme court justices) route all official messages to or through centrally-controlled archives.

These cases are just random examples.  I wouldn't be surprised to find similar cases in other states, whether Indiana, Ohio, Colorado, Tennessee, Arkansas, Indiana or wherever.

With the proliferation of digital gadgets in government, the quantity of records that are discoverable under FOIA is exploding.  One company that makes equipment for police departments has developed a video camera, which an officer would wear on his head, to record everything he sees and hears while on duty.  Veronica Dagher, "New Taser 'Shoots' Evidence," Wall St. J., 9/2/09.  Wow!  That would create a bonanza of government records and evidence.  [Query whether, to comply with privacy laws, police should publish warnings (such as big decals on squad cars) that officers are video recording all they see and hear.]

Update:  Reportedly, when Sarah Palin resigned as governor of Alaska, she cited $2 million as the cost incurred by the state to respond to FOIA requests about her.   FOIA is a growing expense for government.  Governments need to employ technology to contain that cost.  For example, any time government delivers information to one FOIA requester, it should publish that information on the web.  Web publication will avoid the cost of retrieving and culling the information again under future requests.

--Ben Wright

Mr. Wright, a practicing attorney, teaches the Law of Data Security and Investigations at the SANS Institute.