Magistrate Judge John Facciola, one of the more accomplished jurists in the
area of electronic discovery, recently issued an opinion in the ongoing
litigation by the Citizens for Responsibility and Ethics in Washington against
the Executive Office of the President over emails lost as a result of
transitions between electronic mail systems in the Bush White House. Judge
Facciola had previously issued opinions ordering the White House to preserve
backup tapes and to forensically search White House computers for the missing
emails.
Judge Facciola’s opinion was prompted by the short time frame (January 15)
remaining until the new administration would take office. He stated, “To further
complicate the matter, the records at issue are not paper records that can be
stored but electronically stored information that can be deleted with a
keystroke. Additionally, I have no way of knowing what happens to computers and
to hard drives in them when one administration replaces another.”
His concern was perhaps prompted by a General Accounting Office report on the
transition from the previous administration in which, according to the Los
Angeles Times, “the GAO concluded that 'damage, theft, vandalism, and pranks did
occur in the White House during the 2001 presidential transition.'"
Judge Facciola summarized the importance of the emails as follows: “I have
always begun with the premise that . . . the emails that are said to be missing
are the very heart of this lawsuit and there is a profound societal interest in
their preservation. They are, after all, the most fundamental and useful
contemporary records of the recent history of the president's office. If
Napoleon was right when he said that he did not care who wrote France's laws if
he could write its history, then the importance of preserving the emails cannot
be exaggerated.”
Emails are likewise “the most fundamental and useful contemporary records of
the recent history” of any organization. Emails uniquely memorialize the
day-to-day operations of the company and in many instances form the only record
of the details of many transactions. Any policy which discards emails after a
given period (often 30 days) substantially increases the risk that the company
won’t be able to defend itself in a lawsuit.
Lawrence Wescott II, Esq., is a lawyer and a senior consultant for
Kahn Consulting, Inc. He is the author of the Electronic Discovery
Blog, named one of the top 100 legal blogs by the American
Bar Association Journal.