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January 18, 2007

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Peter Mojica

Interesting article. Here you have a defendant's admission that they were instructed from high above, to delete emails relative to the matter in question. Now, plaintiff has found out, so whats next? It's in the jurisdiction on the State vs. Federal so no federal guidelines, at least not yet, on e-discovery. From a forensics angle, this can get very interesting and extremely cost prohibitive. Think of a normal IT department, and first locating the pool of tapes that may be laying around, anywhere from the closet (aka/Morgan Stanley) to the bottom draw on an admins desk (sloppy, but realistic IT practices, Ive done it myself). Best defense, WELL DOCUMENTED backup and tape rotation procedures, documented in a playbook that is kept and maintained upto date, audited and inspected. Think of when you go into an elevator, not sure if many have them today, but they use to have the inspection sheet posted in the elevator, a OTIS mechanics name, date and signature was on the record and you could visibly see that someone is maintaining the elevator and actually checking, nothing sits better for that type of review than 'ink on paper' confirming the audit, yes even today. That small task, could well save a few million dollars in tape search and restoration in the above real world instance. Let's see, do you have files on your local harddrive from four years ago, I do. So, if would appear reasonable that an email send in 2002, and now found to have been deleted evidence may still be hanging around someone's local hard-drive. The forensics examination of each physical asset, the time involved, business disruption, all add up to major costs. Again, best practices could help to ease the pain, even avoid it all together if they exist. A standardized desktop environment, where the machines are locked down, to prevent random acts of, lets call them desktop havoc, etc. Remote backup of local hard drives appears to be the real answer, if that was in place, there would be no need to subpoena and go after every physical asset, since the corporate policy which has these nice ink signatures which denote the regular audit says that all local data is stored right here, of course someone can argue that all sorts of points of why traces of deleted evidence might still be on a local hard drive, but with guide lines in place, and spit test audit procedures it would be difficult to convince a judge to allow you to move forward on that one; I can go on and on; but bottom line is that well thought out IT practices that are mindful specifically of how to defend your electronic asset's in the event of litigation is critical and can save hundreds of millions of dollars, possibly the corporation itself. The saying a best defense is a good offense comes to mind.

Lastly, one area that I haven't seen exploited but makes perfect sense is the following; lets say in the above example that a team of forensics experts gets access to everything they ask for and six months and 25 million dollars later (note that in a wrongful death action, 25mil is not extra-ordinary) there was not a single email to be found. Well you have to imagine that some of the e-mails were internet bound with a destination address to someone at a different company. Well what's to say that those 'smoking guns' are not resident on someone else's backup tapes, mail servers, or local PC's. Can you dump the corporate address book, ask a few pertinent questions in disposition's, like "Who did you send the email to?" and then start going after someone else's email servers, local hard drives, tapes, etc. If the data wasn't electronic, if it was simply human conversations an investigator would find the locate the new potential witness, interview him or her, and assess if their information is relevant to the matter at hand, well expand that one to one human scenario by one to 100 billion and now you see the long reaching effects of electronic discovery and why it makes sense that over time what comes up will eventually come down, rulings on e-discovery will move back to the ultra conservative view point.

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