The Dangers and Opportunities of E-Discovery

Date: Jan 24, 2000

Thanks to high profile cases, such as the Microsoft anti-trust trial, most corporate managers and directors already know that e-mail and other forms of electronic recordings are discoverable in federal court. What they do not know is how to effectively manage the thousands of e-mails that are created and sent each day in a large company. And what they do not know may hurt them in litigation, either in terms of costs, damaging evidence, or both.

The Problem. E-mail is pervasive, and its quantity staggering. Constant daily messages also contain valuable information, that an opposing party or the government will seek during discovery. Finding and compiling endless e-mails in response to a discovery request, in addition to paper documents, can be a task of epic proportions. E-mail also has characteristics that make it the type of information that may be most valuable to the opposing side in litigation -- messages tend to be informal and candid, as senders often regard the messages as less permanent and more private than paper documents. When it comes to gathering electronic information, the other side may be less than forthcoming and may delete messages thinking, "Who is going to know?". However, due to backups and the number of copies distributed, e-mail messages are virtually impossible to destroy, making them ultimately discoverable and a potential cause for sanctions.

The Solution. The first step is a reasonable firm-wide retention policy. It may be the same as for paper documents or tailored to electronic information. It should be publicized and consistently followed. Retention times of a couple of weeks are reasonable, and some programs will delete messages automatically after a certain period of time. When seeking discovery from the other side, ask what type of system and program they use to create and store electronic messages to gain a better understanding of what information is available.

Be Aware. Courts are becoming increasingly sophisticated in their understanding of electronic messages and computer technology in general. While in the past, litigants may have been able to get away with "lost files" or "the computer ate it" type excuses, courts will now impose sanctions. Deleting files while litigation or an investigation is pending will result in the imposition of severe sanctions. With respect to discovery, deleting files may not be enough. Often "deleting" a file only stores the file in another area of the computer. There are programs that can retrieve such lost files, and still other programs can "wipe" memory clean. Make sure that legitimately deleted files stay deleted, and take advantage of any oversight by the other side. Since there are often numerous copies of e-mails, make sure that all are accounted for.

Attorney-Client Privilege. The attorney-client privilege applies to e-mails, just as it does to paper documents. The privilege will be destroyed, however, if it is disclosed to third parties. Ensure that privileged e-mails are only sent to a limited "control" group and not disseminated so broadly as to endanger the privilege.

Cooperation. Finally, because e-mail discovery is burdensome and potentially dangerous, consider entering into a protective order or other consent agreement with the other side limiting discovery of e-mail. The limitations could be by date, subject area or persons sending or receiving the messages. Such limitations may be advantageous to both sides, while preserving the possibility of sanctions for bad faith deletion of e-mail under the agreement.

For more information, please contact Richard Leighton at (202) 434-4220 or via e-mail at leighton@khlaw.com or Richard Mann at (202) 434-4229 or by e-mail at mann@khlaw.com