Electronic Data Records Law | How to Win E-Discovery

Alternative Dispute Resolution eDiscovery

Global Electronic Mail Record Retention-Destruction Policy

E-discovery (EDD) is a topic of growing importance in international dispute resolution. Although the US courts are considered the hotbed of e-discovery (along with, to a lesser extent, the other common law-based courts of UK, Canada and Australia), the topic cannot be ignored anywhere in the world.  For this reason, foreign (i.e., non-US and non-English tradition) organizations have growing reason to retain plentiful e-mail records, even if they have little or no exposure to the jurisdiction of US or other English-tradition courts.

Item One: The Chartered Institute of Arbitrators (known as CIArb, based in London) has published the Protocol for E-Disclosure in Arbitration.  In general, the Protocol is akin to the 2006 e-discovery amendments to the US Federal Rules of Civil Procedure. It confirms that “e-disclosure” (British for “e-discovery”) is a legitimate, even common issue in modern business-commercial arbitration, regardless of whether the common law countries (e.g., US, UK, Canada, Australia, New Zealand and in Asia Signapore) are involved. Further, similar to amended FRCP 16(b) and 26(a) & (f), the Protocol urges parties to confer early and often on e-discovery issues and seek to reach agreement on matters such as the scope, method and cost of e-discovery. And, similar to amended FRCP 26(b)(2), the Protocol presumes that hard-to-reach e-data (electronically stored information or ESI) are outside the scope of disclosure, though the presumption can be overcome.

Item Two: Could the e-discovery law of American courts hold that a continental European government, which hails from a civil law tradition (sometimes called the Roman law tradition), spoliate e-mail records?  The glaring answer is yes. In Reino de Espana v. American Bureau of Shipping, 2006 U.S. Dist. LEXIS 81415 (S.D.N.Y. Nov. 3, 2006), the national government of Spain sued a US enterprise, in US federal court, regarding an oil spill near Spain.  But as Spain initiated this lawsuit, it failed internally to implement an effective litigation hold on its own e-mail records. Spanish government computers lost, destroyed, deleted, erased relevant records.  The US court ruled that the government of Spain was at fault for spoliation.  

The law of spoliation is a key reason that US institutions have learned that generous, centralized retention of e-mail is today wise. The Spanish government has now learned the same lesson.

Update: Practical experience in Germany shows that businesses are, legally-speaking, wise to keep their e-mail records.

–Benjamin Wright

Employee ESI: Private?

Internal Investigations under Data Protection Legislation

Many countries have data privacy laws limiting the disclosure of personal information their citizens. Although the laws are far from uniform around the world, the European Data Protection Directive (95/46/EC) is a leading guide.

These laws motivate (multinational) corporations to configure controls into email (as well as webmail and text-instant-message) record retention systems.

The European Data Directive generally instructs European countries to enact local privacy legislation to regulate personal information. The legislation can apply to e-mail and other electronically stored information (ESI).  As a practical matter, the details on implementation and enforcement of local (non-US) privacy laws with respect to e-mail is a very complex topic.  Some local laws can frustrate internal corporate investigations that might appear, to US-based managers for example, as routine and responsible.  They can cause emails to be withheld from investigators.

One instance: In 2001 French courts held that a foreign-headquartered company violated the privacy rights of a French engineer when it inspected his e-mail records, stored on company computers.  The records revealed he was wrongfully moonlighting on company time.  Doreen Carvajal, “The Workplace: When bosses spy on workers,” International Herald Tribune, April 21, 2004 .

As corporations install appliances to store e-mail archives, they should consider whether to implement controls for compliance with local privacy statutes.  The controls might include

1. written policies calling for compliance with local law;

2. technical blocks to prevent unauthorized people or departments from accessing specific records, while granting access to those who have been authorized; and

3. alerts and audit trails to enable after-the-fact review of who accessed which records and when.

--Benjamin Wright

Mr. Wright is a consultant to Messaging Architects, develper of sound process for electronic mail record-keeping and investigation.

Email Deleted | England

Restoring Network Backup Tapes

A landmark case in England teaches that lessons in the US on e-mail retention and destruction policy are equally applicable in the United Kingdom. The lessons: 1. Early deletion of e-mail can cost a company later in litigation. 2. The law is giving all organizations incentive to generously retain e-mail in a centralized archival system.  (This incentive would even extend to webmail that employees use for business purposes.)

Digicel et al v. Cable & Wireless, et al [2008] EWHC 2522 (Ch) was a commercial dispute between telecommunications providers in the Caribbean (including St Lucia, St Vincent and the Grenadines, Grenada, Barbados, The Cayman Islands, Trinidad and Tobago, and The Turks and Caicos Islands).

Digicel claimed C&W unlawfully failed to connect Digicel to C&W’s network. Digicel sued in English court. Under the Civil Procedure Rules (applicable in England and Wales), Digicel sought from C&W “disclosure”of e-mail of seven former employees. (In the US we use the word “discovery” rather than disclosure.)

Said the British court: "The 7 individuals are former employees of a [C&W] Defendant company. The e-mail accounts of those former employees were deleted [purged] from the relevant server following the ending of their employment. However, it may be the case that some or all of the individual's e-mail accounts exist on the back-up tapes."

The court's logic illuminates why I argue against the practice of destroying employee e-mail upon termination of employment (aka dismissal). E-mail records of ex-employees are assets of the employer that the employer is often wise to keep.  

To search for particular e-mails by way of corporate backup tapes is expensive and tedious. C&W argued that this effort was not legally justified.

The UK court evaluated whether to order searching (restoration) of C&W’s backup tapes. For guidance, it looked to experience in other countries, such as the law of e-discovery in the US. 

The court decided to order extensive restoration of back-up tapes.  

The court noted that some foreign (such as US) judicial decisions have shifted some of the cost of e-disclosure (e-discovery) to the requesting party (Digicel). The court said it would postpone until later the question whether Digicel should bear any of the costs.

The court’s approach was remarkably consistent with the US approach (citing US authorities), where courts have taught us more about e-discovery and electronically stored information (ESI). 

–Benjamin Wright

Mr. Wright is an consultant to messagingarchitects.com, leader in sound process for eDisclosure and Groupwise archival.  Mr. Wright and Messaging Architects have teamed to educate professionals about eDiscovery.   Mr. Wright is also a senior instructor at the SANS Institute, where he teaches the modern law of internal investigations and enterprise data policies.