Electronic Data Records Law | How to Win E-Discovery

Freedom of Information Act | Computer Records

Freedom of Information Act Requests Yield E-Troves of Documents

FOIA forces transparency in government, and transparency in turn forces revolution in the administration of public institutions – both national and local.

A FOIA requires government to disclose records to citizens upon request.  Remarkably, the quantity of available records relevant to any given request is skyrocketing as government agents adopt digital technology – databases, electronic mail, instant messaging, text messaging, Twitter, collaboration software and more – to execute the details of day-to-day government. The implications for democracy are profound.  So are the governance implications for enterprises of all descriptions.

Item One: Britain is in uproar over the expenses of Parliament members.  The row started when a journalist used the UK’s new FOIA to request records about M.P. requests for reimbursement of living expenses.  By age-old practice, the government covered M.P.s for the living costs associated with their official duties, but the specifics have always been hidden from public view.  Reluctantly resistantly the government prepared to turn over expense records under FOIA – though with heavy redacting to protect M.P. privacy.

But by this time loads of (un-redacted) M.P. expense records had been compiled into something that did not exist in the old days . . . a neat, convenient-to-steal electronic form.  This compact compilation of records enabled a whistleblower to spirit the records out of a government computer and into the hands of a newspaper.  The Daily Telegraph’s ensuing publication of complete, open details has embarrassed M.P.s in an historic scandal. British government will never be the same.  John F. Burns, “In Britain, Scandal Flows From Modest Request,” NY Times, May 20, 2009.

Item Two is Clark County School District, Nevada. Citizen Karen Gray requested under FOIA a year’s worth of the School Board’s e-mail, about 1500 messages.  A few years ago, records of such granularity did not even exist for a typical school board (or city/municipal commission, county management, state committee or board of trustees).  But e-mail has caused the creation of mounds of new records, which become fodder for any kind of legal investigation.

The District tried to delay disclosure.  It also tried to charge Ms. Gray $4000 for the costs of recovering the records (and filtering them for private/confidential data), but those costs reflect out-of-date, manual methods for compiling and reviewing e-mail records. The Nevada courts resisted the delay and the high charges.  The attitude of the courts was that the law favors inexpensive and generous disclosure. So the courts forced disclosure.

Ms. Gray’s case implies that Freedom of Information Act law is intolerant of governments that make their important e-mail records hard to recover.  A modern e-mail archive appliance makes the compilation and filtering of e-mail (especially that of executives, professionals, top managers, and board members) quick and inexpensive . . . consistent with the purpose of FOIA law.

–Benjamin Wright

Mr. Wright is an advisor to messagingarchitects.com, the visionaries in e-records management.

Electronic Discovery Professional Duty

Falsehoods and Duty of Confidentiality

What is an e-forensics specialist to do when she discovers her client has been lying to her?  Typically this kind of computer specialist is hired to find, audit and report on electronically stored information (ESI).  If the specialist has been making representations to others -- such as a court, an internal investigator or an inspector general who has issued a subpoena, on the basis of what she now knows to be lies, she is in a bind.  Like any professional working for a client on a sensitive matter, the specialist will likely owe the client a duty of confidentiality.  Normally she will have signed a non-disclosure agreement. 

How to Preserve Reputation?

The specialist’s reputation is at stake. Obviously, to disassociate herself from misrepresentation, she can withdraw from the engagement.  But she fears that the third party will continue to rely on her representations, which are no longer well-founded. 

A practical technique available to this specialist is known as the noisy withdrawal.  Although noisy withdrawal is most commonly known from cases where lawyers learn that their clients have been lying to them, the technique is a responsible measure available any ethical professional.  

In a noisy withdrawal a professional announces that he is withdrawing from representation of his client. In addition (this is the noisy part) he declares to interested third parties that he disaffirms his prior statements made on behalf of the client.  With the noisy withdrawal, the professional aims to preserve his own credibility, without compromising the client’s secrets.  He does not reveal why he is withdrawing, why he is disclaiming prior statements or any information his client has told him.

Examples of Noisy Withdrawal

A recent example of a noisy withdrawal occurred in the investigation of Stanford Financial Group. Attorney Thomas Sjoblom had represented the firm before the Securities and Exchange Commission as it examined alleged fraud, corruption and irregularities.  But then he made a noisy withdrawal from the engagement.  Observers surmised that as the case progressed he had come to disbelieve what his client had been telling him. Kara Scannell, “Top Lawyer’s Withdrawal from Stanford Case Waves a Flag,” Wall Street Journal, Mar. 6, 2009.

Another famous example transpired in the Whitewater investigation during the Clinton presidential administration.  Legendary ethics expert Sam Dash made a noisy withdrawal when the Whitewater Independent Counsel wrongly gave the impression that Professor Dash endorsed the Counsel’s conduct.  (By the way, prior to this story, the late Sam Dash was my ethics professor in law school.  Over the long run, I hope Professor Dash’s teaching helps me stay out of trouble!)

–Benjamin Wright

Mr. Wright teaches cyber defense law at the SANS Institute, where he emphasizes the role of ethics and savvy public communications.