Electronic Data Records Law | How to Win E-Discovery

Text Messages Wiped from BlackBerries

Lawsuit Evidence Erased from Personal & Corporate Cell Phones | Court Punishes | Business Policy

To spoliate means to destroy or conceal evidence that one has reason to believe will be needed in litigation.  If a court finds a litigant has spoliated evidence, such as records, then the court will impose penalties.

Courts have punished many organizations for failing to keep electronic mail records.  Logically, the same punishment awaits organizations that fail to retain executive text

and instant messages, but to support that proposition I’ve not been able to cite a case.  Now I can cite Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009).

In a trade secret lawsuit, the court had ordered several employees of the defendant to surrender their BlackBerries to forensic experts for investigation.  (Two of the BlackBerries belonged to the corporate defendant; one was the personal property of the employee.)  But when the experts received the BlackBerries, the devices were devoid of data – no text message records, no calendar items, no call history, nothing.  The court knew that the employees regularly used the devices for more than just telephone calls. 

The defendant argued there was no spoliation because the devices were configured so that all electronic mails would be copied and preserved in the defendant’s corporate e-mail server.  Yet the court was highly suspicious. What about text messages?  Those were not copied to the e-mail server.  Why were all of the devices wiped clean? 

The court concluded that the defendant and/or its employees had intentionally destroyed records such as text messages on the smart-phones.  As punishment the court dealt the defendant a strategic disadvantage in the lawsuit, in the form an adverse inference for the jury later in the lawsuit.  (In other words, as the jury is empaneled, it will be informed that the defendant had mishandled important records, which could be taken as a strike against the defendant.)

Lesson:  As a matter of policy, an enterprise is wise to preserve the business text and instant messages (IM) of its employees – especially executives, managers and professionals -- just as it does email.  A text message can be legal evidence just as an email can be.

The phones in this case were BlackBerries.  It seems the outcome would have been the same were the phones, Androids, iPhones (which now supports MMS) or some other form of PDA.  Eventually, we'll see cases dealing with record retention/destruction for MMS (multimedia messaging service).  Soon thereafter the cases will address high definition (HD) videoconferencing, also known as telepresence.

Update:  A policy workshop I led created some language for enterprise policy on recording text, Facebook and other "unconventional" electronic business messages.

Another Update: Modern smartphones like the HTC One allow the user to back text messages up to an email account, like an enterprise account. Thus, when an executive sends or receives a legally significant text message, she can archive it in her enterprise email account.

–Benjamin Wright

Mr. Wright teaches eDiscovery and Data Security Law at the SANS Institute.

Health-care eDiscovery | Email Destroyed

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 (which includes ensuring emails are not erased).

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.  He also teaches e-data law at the SANS Institute.