County Underestimates Value of Its Own E-mail Records
Some public agencies don't realize that in litigation their own good records can be their best defense.
Commonly a defendant in a lawsuit is reluctant to search through its e-mails – and incredulous that a court would force it to dig deep for them. In Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007), a New York county made the process of e-discovery excessively difficult and expensive for itself.
Plaintiffs sued the county for allegedly barring them from participation in a real estate auction to which they were entitled. After the lawsuit started, the county did a poor job of preserving its e-mail records. Then, when the plaintiffs demanded – in the “discovery” phase of the lawsuit -- that the county search for and disclose relevant e-mail, the county faltered. It initially turned over only two e-mail records.
The plaintiffs complained repeatedly to the judge. The judge insisted that the county search for and turn over e-mail records.
Eventually, the county complied. It hired an outside e-discovery consultant, who restored 417 backup tapes, and found 2,403 pages of relevant emails and attachments. The restoration and searching of backup tapes is very expensive.
Despite this expenditure by the county, the plaintiffs were still able to show that the county had lost some relevant e-mails. The court therefore ordered the county to pay the legal costs plaintiffs incurred to force the county to conduct a thorough search for e-mail records. The court said the county should have implemented a litigation hold from the start of the lawsuit, but it didn't.
Notably, the e-mails that the county did recover tended to support the county's side of the case.
Analysis: The county would have been better served if, as a matter of policy before the dispute started, it had competently archived all of the e-mail of important employees. A good archiving system would have allowed the county to possess and easily find the relevant e-mails – including those that supported the county's position. It would have obviated the need to restore backup tapes.
Further, the archival of plentiful records would have avoided the complaint that the county had failed to implement a proper litigation hold. And that would have prevented the county having to reimburse the plaintiffs' attorneys fees.
