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Sent to you by pakurilecz via Google Reader: E-Discovery at School:
Lost E-mails & Erased Hard Drive via Hack-igations by Ben Wright on
7/3/08 Electronic Record Retention at Educational Institution Needed
Litigation Hold Before Lawsuit Filed Since adoption of special
amendments to the Federal Rules of Civil Procedure (FRCP) in late 2006,
the field of e-discovery law has grown more dangerous for all
enterprises. Recent cases show courts are serious about expecting
litigants to possess and be able to find their e-mail and other
electronic records.

A case in point is Jane Doe v. Norwalk Community College, a
garden-variety lawsuit brought against a sympathetic public
institution. It illustrates how expensive e-discovery issues can be for
even a well-meaning public enterprise that fails to keep good,
centrally-managed e-mail records.

A student alleged that a teacher at Norwalk was making sexual advances
toward her. Faculty members discussed the allegations by e-mail, and
police opened an investigation in February 2004. The teacher in
question left the college. Then in November 2004 the student sued the
college and demanded under the litigation rules of discovery that the
college turn over all relevant e-mail records. The college was not
forthcoming, so the student hired a computer forensic expert who
examined the laptop that had been issued to the teacher. The expert
claimed the college had destroyed electronic evidence. He showed that
the college possessed 500 e-mails from the relevant time period
belonging to a certain teacher who knew about the allegations, but the
college could not produce this teacher's e-mail concerning the
allegations.

The college's IT manager tried to explain to the judge what happened.
He told the court that the college did not intentionally destroy
anything, although he admitted that after the suspect teacher left, the
college followed its usual policy of cleaning the hard drive of the
laptop belonging to the teacher so it could be given to another
employee. The cleaning was a well-intentioned policy to protect the
privacy of student information and to prevent unauthorized access to
the college's IT infrastructure. Further, the IT manager said some
records may have been overwritten in the ordinary course, and some
records may have been lost due to computer error.

The college did not persuade District Judge Janet C. Hall. The judge
said the college should have preserved all evidence relating to the
suspect teacher from the beginning of the police investigation in
February 2004. What's more, the judge did not believe the college's
explanation for why e-mails could not be found. The judge found that
Norwalk was "at least grossly negligent, if not reckless" in its
failure to preserve electronic records. As a consequence, the judge
ordered the college to pay the student's costs in pursuing e-discovery
from the college (i.e, the costs of hiring the forensic expert).

Moreover, the judge ruled that when this case goes to trial, the jury
will be told that the college destroyed or mishandled records that
would have supported the student’s side of this case. Thomas B.
Scheffey, “Erased E-Mails Return as Sanction in Harassment Case,”
August 27, 2007, The Connecticut Law Tribune. This latter sanction
carried severe implications for the college. It increased the
likelihood the institution would lose the case and have to pay sizable
money damages to the student. In fact, this small college eventually
settled the case for $765,000, plus a commitment to provide all
employees with training on harassment. Lisa Chamoff, “NCC settles
sexual assault suit for $765K,” February 29, 2008, The Norwalk Advocate.

If the college had possessed more complete and better organized records
at the outset, it would not have found itself at such a disadvantage in
court.

Litigation trends suggest that any enterprise is wise to be generous in
the retention of e-mail by decision-makers and to be capable of easily
finding and searching the more recent records. A prudent course would
be for the enterprise to implement a central e-mail archival system.

--Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, developer of
e-records solutions for schools, hospitals and other enterprises.


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