Electronic Data Records Law | How to Win E-Discovery

Treat Electronic Records the Same as Paper Records?

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.

Terminate Employee, Delete Email?

Are Layoffs a Reason to Destroy Electronic Mail Records?

Departure (dismissal) of an employee does not justify destruction of his e-mail records stored on employer equipment. Those records are not the property of the employee or (normally in the U.S., with some qualifications) the vessel of his privacy.  The records are an asset of the employer, showing what the employee did in his capacity as an employee and agent of the employer and how he was supervised.

In our changing economy, employers are learning how to get the same productivity with fewer people.  As they let some employees go, the email records of those employees are part of the employer's valuable institutional memory.

Wasting Manager Time

A manager is wasting her time if she paws through a departing employee’s e-mail to decide what to keep and what to destroy (delete).  It is better just to keep the e-mail, consistent with the retention and privacy practices generally applicable for all employees. 

Email is an Asset of the Enterprise

E-mail records memorialize intellectual property development by employees (such as an inventor or engineer), and they record when and under what conditions trade secrets are shared with business partners.  In intellectual property (IP) disputes, proving the time and date that particular events transpired is essential.  The beauty of email records is that every message is stamped with time and date.

Today, e-mail records are critical to many investigations and disputes; they are even critical under search warrants, where law enforcement seizes records under court supervision. In Jane Doe v. Norwalk Community College (a sexual harassment case), the court sanctioned a college for destroying electronic records of a suspect teacher after he left the college.  The same could happen to any educational institution (public or private . . . higher, secondary, primary, K-12).

E-mail records show what commitments employees did and did not make on behalf of the employer. In Cloud Corp. v. Hasbro,  314 F.3d 289 (7th Cir. 2002), employee e-mail effectively modified a paper-written contract that said it could not be modified except by a “signed writing”.  E-mail can be a legally-binding “signed writing” that memorializes the employer’s rights and responsibilities under contracts.

Federal Sentencing Guidelines

E-mail records showing day-to-day education and supervision of employees are consistent with the expectations of the Federal Sentencing Guidelines.  The Sentencing Guidelines are the framework within which federal judges select penalties for convicted criminals.  If a criminal happens to be an enterprise, the Guidelines call for leniency where the enterprise had taken steps to prevent and mitigate crime by employees.  In other words, bad employees might go to jail, but their not-so-bad employer might avoid stiff criminal penalties.

Under the Sentencing Guidelines, the steps the employer must take include establishing and promoting an employee ethics program and then monitoring and disciplining employee conduct.  To show that an employer did this, electronic mail records (ESI) can be key evidence.  They can document regular education, supervision and discipline of employees.

Update: The Federal Sentencing Guidelines are proposed to be amended so as to place more emphasis on complete record retention.

Policy?

So precisely how long should employers keep email records? There is no one-size-fits-all answer.  I have led in-house workshops to address this question at numerous, diverse enterprises. The outcome of these workshops has varied, depending on many factors, including corporate culture.

In my experience, the best email retention policy is one that is developed by collaboration of the various stakeholder departments in the enterprise (legal, IT, HR, operations et al.).  Normally, these different stakeholders start with different positions on what the policy should say.  But, in my experience, after the stakeholders have talked through the issues, they tend to compromise their positions and coalesce into a policy that is unique to the enterprise.

–-Benjamin Wright

Mr. Wright is senior instructor for the SANS Institute, where he delivers professional training on the law of e-discovery, e-records management and internal investigations.

P.S.  Employers may believe that by deleting email they are preventing a future eDiscovery adversary from conducting a so-called fishing expedition through the records.  However, I argue that the advantages of generous record retention outweigh the risk of a fishing expedition.