Electronic Data Records Law | How to Win E-Discovery

Lawsuit Advantage

Electronic Discovery Search-Strategy

Litigants by their nature are in search of advantage over their adversaries.  In this computer age, new tools for advantage emerge every day. 

An intriguing discipline that could yield new tools is linguistic analysis, especially sentiment analytics.  A company
named Jodange searches vast quantities of text in social media (Twitter, Facebook, LinkedIn, Yelp, online dating sites) to ascertain the opinion (the sentiment) of thought leaders or interest groups.  It employs computer-driven algorithms to analyze, for instance, the compositional semantics within text (e.g., tweets on Twitter) to glean what, say, US consumers think of brand X.

For sentiment analytics, I see a promising application in what we lawyers call "eDiscovery."  eDiscovery is a rapidly growing field, where much money is at stake.  eDiscovery includes the collection and review of vast quantities of data (especially email) in a lawsuit or investigation.  A business or government lawsuit can involve tens of millions of emails -- too many to read and understand one-by-one.  Linguistic analysis, and sentiment analytics, could be valuable to a litigant seeking e-Discovery (EDD) advantage.

Intent Influences Legal Results

Why do I think sentiment analytics could be especially relevant to a lawsuit?  The reason is that very often legal liability or outcome depends on the “intent” of a person or an enterprise.  For example, to commit a crime a defendant must usually intend to do something wrong.  No intent, no crime.  

In complex criminal cases, like one against a corporate defendant, the defendant strives to show that it had no intent to behave badly or break the law.

To deduce the intent of people or entities from large numbers of communications such as e-mails is not easy for a jury or a judge.  Sentiment analytics could help.  Just as it can help interpret the opinion of 20,000 consumers, it could help answer questions like, what was the corporation thinking, what did it mean to do, what was its intention?

Example in a Lawsuit

I imagine this kind of argument being made by an antitrust defendant in court:  “Sentiment analytics of four million emails within ABC Corporation reveals that neither the company, its staff nor its leadership had a plan, desire or intention to fix prices, to conspire with competitors or to otherwise violate the antitrust laws.”  Presented correctly, that kind of argument could be powerful, and could open a new chapter in American jurisprudence.

The cases to which sentiment analytics applies need not necessarily involve extremely large numbers of messages.  Sentiment analytics might be useful for interpreting, say, a few hundred messages in a child custody battle or the augmented reality advertisements broadcast to the patrons of a restaurant during a particular week.

Investigators -- whether they be courts, auditors or regulatory authorities -- need new tools.  Linguistic analysis tools could help any kind of investigator make sense of voluminous electronic evidence.

–Benjamin Wright

Mr. Wright teaches e-discovery and e-investigations law at the SANS Institute.

Destroy Backup Tapes, Obstruct Justice?

Canada | Politician Emails Lost?

Which employee wants to be the target of a criminal investigation into whether public record e-mails were wrongfully destroyed?  Observers of a political corruption lawsuit in British Columbia were shocked to learn that – while the well-known lawsuit was pending – IT employees destroyed backup tapes  containing key e-mails by executives (i.e., government officials negotiating the sale of the then-government enterprise, BC Rail).  

This kind of news sounds sensational in the press.  The public naturally wonders what the justification was for erasing records.  How much does it cost, citizens ask, just to retain some tapes a few more years?  Did someone apply a record destruction policy as a convenient way to eliminate embarrassing evidence?  Should the employees not have observed a "legal hold" (also known as "litigation hold") on the records?

Such destruction of records, during an on-going prosecution, could be grounds for a criminal investigation into obstruction of justice, said a local expert quoted in the BC news media.

Such destruction of records may also qualify as spoliation, worthy of sanctions by a court.

Easy to Write Policy | Hard to Follow

In the field of records management, it is easy to write a policy that says an enterprise will destroy records like email regularly, but will apply a "legal hold" when a lawsuit or investigation arises.  However, in practice, to institute a legal hold is hard.  It is hard for the responsible employees to understand when and where they need to apply a litigation hold. 

Consider this issue from the perspective of employees in government agencies or other large enterprises.  They don’t want to do anything illegal.  But for an employee to stay fully informed of all pending lawsuits and investigations (even well-known ones) can be very difficult in practice.  Many employees who have control over email records do not know all of the matters to which they many pertain.

Safer Course

From the perspective of employees, the safer course of action is to retain electronic records of executives generously, for a long time.  Modern technology is causing the cost of email retention to drop. To retain a lot of e-mail is not as expensive as retaining a lot paper holding the same content.

–Benjamin Wright

Mr. Wright teaches e-records management and cyber investigations law at the SANS Institute.