Interesting article that appeared in the Minot Daily News. Comments?
CP Rail deleted e-mails related to Minot accident
By DAVE CALDWELL, Staff Writer dcaldwell@minotdailynews.com
A new twist in the legal wrangling over a deadly train derailment five years ago this Thursday has shed some fresh light on the tactics purportedly used by one of the parties in the resulting lawsuits.
According to a legal brief by U.S. Chief District Judge James Rosenbaum dated Thursday, the deletion of e-mails concerning the deadly Jan. 18, 2002, derailment of a Canadian Pacific Railway train just outside Minot has prompted Rosenbaum to allow a defense team access to evidence gathered by a computer forensics expert.
The brief states that during state court proceedings, representatives of one of the derailment plaintiffs, Claudia Roberts, discovered an e-mail message sent by a Soo Line manager to the railroad's top claims agent that began by stating, "In the tradition of keeping very few Minot-related e-mails." During the deposition of the same manager in the case, he was asked about the message, at which time he admitted destroying e-mails about the Minot derailment, saying he had been ordered to do so by a higher-up in the company.
After this revelation, CP Rail hired the computer forensics expert to investigate whether electronic data had been destroyed and, if so, whether that data could be retrieved, according to the brief.
The plaintiff was seeking, via the discovery process, access to the information gathered by the computer expert and permission to depose the expert as soon as possible.
The railroad argued that the motion should be denied until the issue of preemption had been solved, stating that if it was ruled to be immune to lawsuits under federal law, any destruction of evidence in the case would be irrelevant. Calling it a "no harm, no foul" argument, Rosenbaum denied the request, likening it to a group of bank robbers planning to rob a bank, only to arrive and "find that the bank failed and closed its doors the day before the robbers' arrival. Just as the conspiracy to rob the bank is, itself, a crime, regardless of the impossibility of the bank robbery's success, so too, is an attempt to suborn the fact-finding process an affront to the court, even if there will ultimately be no fact-finding."
Also, the railroad argued that any issue on the state court cases would be precluded by the change in jurisdiction to federal court. Rosenbaum also denied that argument, stating that the court has authority to make sure that its processes are followed properly.
Attorney Mike Miller of the Fargo office of Solberg, Stewart, Miller and Tjon, which represents Roberts in the case, said that the revelation that evidence is being destroyed could be "dynamite stuff if the cases go forward."
"It's a very unusual thing," he said. "I can't think of too many cases where one of the parties involved has destroyed evidence. Right now, we don't even know the amount of evidence that has been destroyed, but we're going to get those answers."
Attempts to contact Minneapolis transportation attorney Timothy Thornton, who represents CP Rail in the cases, were unsuccessful Monday.
Miller said that regardless of what the outcome is on the issue of preemption, the discovery is going to make a difference to the judge in the case.
"The judge may be able to pursue numerous remedies available to him," he said.
Miller said that issues being addressed by Congress in Washington, D.C., might also have an impact on the status of the cases.
"This fight is being fought on more than one front," Miller said. "I can't say an adverse decision by the Eighth Circuit is going to be the end of it."
Miller said that if the Minot cases go forward in front of the jury, the judge will be able to inform the jury that evidence was likely destroyed in the case and that evidence was likely very harmful to the railroad's case.
"It could be a big step in the right direction when we go forward," Miller said.
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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.
Posted by: Peter Mojica | January 18, 2007 at 09:31 AM