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By Joan E. Feldman
The growing use of electronic mail and other electronic evidence in litigation is having a profound effect on how individuals and businesses communicate and store information.
Electronic mail, in particular, has a nasty way of turning up in the courtroom. Take for example the message Los Angeles police officer Lawrence Powell wrote shortly after the Rodney King beating. “Oops, I haven’t beaten anyone so bad in a long time.” Extreme cases such as this aside, take a moment to mentally review some of the messages you have recently sent or received. Which of these would you like to see blown up on a chart for presentation to a jury?
Often treated as the equivalent of a hallway conversation or telephone call, E-mail messages can be stored—sometimes for years—on hard drives, file servers, diskettes and backup tapes. Electronic mail, especially, proliferates at an uncontrolled rate. Multiple copies of a E-mail message can be “broadcast” with a simple keystroke, and E-mail messages in whole or in part can be easily forwarded to hundreds of recipients.
It’s not only E-mail that is open to discovery; electronic calendars, correspondence, memos and reports may all be deemed discoverable in a civil litigation matter. For individuals using computers in every facet of their business and daily lives, including (and certainly not limited to) E-mail, word processing, calendars and scheduling, data can accrue at a staggering rate. This data is often created, transmitted and stored without the records management controls applied to paper files. But like a paper file, if it’s relevant to the lawsuit, electronic data is fully discoverable. See Crown Life Insurance Co. v. Craig 995 F.2d 1376,1383 (7th Cir. 1993).
Electronic data’s innate ability to replicate itself compounds the problem. Most software manufacturers protect users from inadvertently losing their files by incorporating an automatic backup feature. This means that for almost every data file created (eg. a WordPerfect or MS Word file), you will have at least one other copy of the file somewhere on the system (eg. the ubiquitous BK! or BAK file). Routine backup procedures generate yet more copies, and individual users may have their own ad hoc backup procedures.
More disturbing still is the fact that electronic data, even when erased, can usually be recovered. A command to “delete” a file will not destroy the file’s contents—only the file index (File Allocation Table, or FAT) is changed. Imagine a drawer filled with labeled file folders. Removing a file label makes the locating difficult. However, the folder itself remains intact, in the drawer … awaiting its discovery by a determined investigator. While DOS can no longer easily find the data, many software utility programs can get deleted files back in their entirety.
In a recent case, Easley, McCaleb & Associates, Inc. v. Brian A. Perry, No. E-26663 (Ga. Super. CT. July 13, 1994), the court deemed that deleted but recovered files were admissible.
Follow the trail of one company’s hypothetical E-mail message:
A rogue partner fires off a flaming E-mail message to the company’s administrator describing a staff member as “that old F-rt whose time has definitely come.” In this instance, the E-mail system was configured to store copies of outgoing messages on the sender’s hard drive as well as the file server. In addition, when a message was read by the addressee, it was automatically saved to the addressee’s machine until purposely deleted. The message, residing on the server, was swept into a monthly backup, where it was stored on a backup tape for a year. Luckily, the sender did not make use of the E-mail’s broadcast feature, but even so, the disastrous message was now in at least four locations. One of the file copies was found, produced during discovery and presented to the jury in an age discrimination action.
The above case illustrates the pitfalls of E-mail. It is just as likely that a key piece of evidence could have been located within a long “destroyed” internal memo, or perhaps in a note to the file that was backed up and preserved on tape. What about controlling your own risk of “electronic exposure?” Everyone has compelling reasons to use computers carefully. You may want to start the process by broadcasting this piece over your company’s E-mail system.
Warning: Don’t write anything here that you wouldn’t want a jury to read.
Joan E. Feldman is the President of Computer Forensics, Inc. in Seattle, Washington. She can be reached at (206) 324-6232.
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