DESTRUCTION OF E-MAIL

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Now that e-mail has worked its way in no time into the very fabric of your life, you need to recognize it as more than simply an informal, casual means of communication. In fact, the courts treat e-mail as formal records—no different than print communication. So, be prepared for the legal consequences, including the fact that your company’s e-mail is discoverable in litigation.

For example, just ask Bill Gates about the significance of this treatment. Reams and megabytes of Microsoft e-mail messages dating from the 1990s (including Gates’ own) were being used skillfully by the government in its antitrust case against Microsoft. As with any other printed documents, these e-mail messages were deemed records discoverable under the federal rules of civil procedure.

Accordingly, the courts will not hesitate to compel businesses to produce these records and, further, to sanction them for their failure to so produce. For instance, in the Brand Name Prescription Drugs Antitrust Litigation, 1995 WL 360526 (N.D. Ill. 1995), the court required the corporate defendant, CIBA-Geigy Corporation, to produce over 30 million e-mail messages stored on back-up tapes and to foot the $50,000–$70,000 cost to search the messages and format them into a readable form.

According to the court, the reasonable translation of electronic data into a usable form is an ordinary and foreseeable burden of litigation that the defendant should bear, absent a showing of extraordinary hardship.

And the fact that the electronic data may be duplicative of print documentation already produced in litigation is irrelevant. Thus, for example, when the insurance company in American Bankers Ins. Co. of Florida v. Caruth, et al., 786 S.W.2d 427 (Tex. Ct. App. 1990), failed to produce computer files despite already having produced approximately 30,000 boxes of material containing the same information, the court sanctioned the company by conclusively deeming each allegation against the company to be true, thereby precluding the company from contesting the allegations and leading to entry of default judgment against it.

Hitting the delete button on your keyboard is not a panacea either. Do you remember Oliver North, whose deleted e-mail messages from the White House were retrieved from a main frame back-up tape during the Iran-Contra investigation? If information that has been deleted has not yet been overwritten by the computer system or is stored on back-up tapes or archive tapes, the information may still be accessible.

Any attempts to destroy the e-mail will likewise be met with harsh consequences. For example, in Computer Associates International, Inc. v. American Fundware, Inc., 133 F.R.D. 166 (D. Colo. 1990), a developer of a computer program, over the course of years, destroyed prior versions of a source code, retaining only the current version. Although the court acknowledged that such destruction of older versions may be the standard industry practice, the court found that once the developer knew, or should have known that the source code would probably be critical evidence in pending or imminent litigation, a duty arose to preserve it. The court held that the developer had received a copy of the lawsuit filed by the holder of the copyright to the computer program; but continued to destroy older versions of the source code. Therefore, the developer had breached his or her duty to preserve the code. Accordingly, the court entered default judgment against the developer as an appropriate sanction.

Employers beware, for even prelitigation correspondence has been found sufficient to impose a duty to preserve relevant documents, electronic or otherwise (see the example of William T. Thompson Co. v. Gen’l Nutrition Corp., 593 F. Supp. 1443, 1446 [C.D. Cal. 1984]). Recently, one court imposed a $1 million sanction, as well as reimbursement of attorney fees, even though no willful destruction of electronic records was found (see the example of Prudential Insurance Co. Sales Practices Litigation, 169 F.R.D. 598 [D.N.J. 1997])!

To avoid these litigation nightmares, you should implement a consistent retention policy that includes one or more of the following: routinely archive all e-mail as it is received on your server for a certain period of time (say, 30–60 days); clear the archives after an additional specified time; physically segregate the back-up copies of the e-mail system from back-ups of the rest of the computer system; automatically erase e-mail from the computer system, including backups, after a short period (15-30 days); apply uniform retention and deletion standards and features outside the server to workstations and laptops; and formulate and distribute a statement that the automatic deletion of electronic records will be suspended and steps taken to preserve records in the event of investigation or litigation. With such a policy in place, you may not stay out of the courtroom, but at least you will be prepared if you ever find your company the target of a lawsuit or subpoena.

Now, let’s look at the development of cross-disciplinary guidelines and standards for the recovery, preservation, and examination of digital evidence, including audio, imaging, and electronic devices with regards to the damaging of computer evidence. This part of the chapter proposes the establishment of standards for the exchange of digital evidence between sovereign nations and is intended to elicit constructive discussion regarding the damaging of digital evidence.



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Computer Forensics. Computer Crime Scene Investigation
Computer Forensics: Computer Crime Scene Investigation (With CD-ROM) (Networking Series)
ISBN: 1584500182
EAN: 2147483647
Year: 2002
Pages: 263
Authors: John R. Vacca

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