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Sent to you by pakurilecz via Google Reader: E-mail Litigation Hold in
Local Government via Electronic Data Records Law | How to Win
E-Discovery by Benjamin Wright on 9/9/08
Costly E-Discovery in Backup Tapes

Commonly a public agency destroys e-mail relatively quickly, while
expecting individual administrators and professionals to keep needed
records as a special exception. Then, when hit with a lawsuit, the
agency assumes individual employees can be told to save e-mails that
are relevant to the lawsuit.

But this approach is not faring well in court, in good part because
employees are not talented at keeping records. The approach can lead to
sanctions in court, or a requirement that the agency undertake the
expensive task of digging through network backup tapes.

Consider for instance the plight of the Washington Metro Transit
Authority.
A civil rights group representing disabled passengers sued the
authority, alleging it provided too few para-transit services. When the
litigation started, the transit authority implemented a “litigation
hold”. It told employees such as engineers to keep relevant e-mails.
(In practice this meant employees would sequester selected e-mails in
PST files.)

The authority did not have a central facility for long-term archival of
e-mail. Its central e-mail storage kept records for only 60 days.

Eventually, under the e-discovery rules of litigation, the plaintiff
demanded that the transit authority search for and turn over all e-mail
relevant to the lawsuit. It was learned, however, that employees had
not done a good job keeping their e-mail. Records were lost.

The court took this matter seriously. It ordered the transit authority
to sift through voluminous backup tapes in search of missing e-mails.
The court over-ruled the objection of the transit authority that to
search through network backup records was unduly expensive and
burdensome.

(Disability Rights Council of Greater Wash. v. Washington Metro. Area
Transit Auth., 2007 WL 1585452 (D.D.C. June 1, 2007).)

Our legal and political culture harbors a deep belief that if records
were created, they need to be retained and disclosed for the purpose of
resolving disputes.

Courts judge records management decisions retrospectively, in other
words, with 20/20 hindsight. Judges evaluate a party’s record retention
and destruction practices after they have been implemented.

What this means in practice is that organizations are at risk. If a
government entity makes a record-keeping mistake, it can be punished
for failing to possess or find the records that a court later believes
should have been preserved.



Hence, government agencies (all enterprises, really) have incentive to
give themselves a margin for error and store more. They also have
incentive to store records centrally, so as to take decisions about
storage and destruction of e-mail records out of the hands of
individual employees.



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