Government
Lawsuits and Lessons Learned
Since the adoption of special amendments to the Federal Rules of Civil in late 2006, the field of e-discovery law has grown more dangerous for public agencies.
Recent cases show courts are serious about expecting litigants to possess and be able to find their email and other electronic records. Litigation trends suggest that an agency is wise to be generous in the retention of email by decision-makers and to be capable of easily finding and searching the more recent records.
A prudent course would be for the agency to implement a central email archival system.
Thompson v. United States Dep't of Hous. & Urban Dev
In Thompson v. United States Dep't of Hous. & Urban Dev.(1) the government turned over to a plaintiff the emails it thought were relevant to the lawsuit. But, months later, as the lawsuit was about to go to trial, the government found 80,000 additional email records. It disclosed the records.
But the court said the government was late; the 80,000 emails should have been divulged earlier. Therefore the court declared the government could not use any of the 80,000 records as evidence in its defense. But the plaintiff would be free to use any of those records it believed supported its side of the case. This ruling put the government at a distinct disadvantage as it tried to defend itself in court.
To avoid a similar fate, public agencies need organized, searchable email records.
Freedom of Information and Open Records Requests
Increasingly, public agencies are required to search for and turn over e-mail records in response to freedom of information and open records requests. For example, a Kentucky judge required the state government to give a man copies of e-mails between his wife, a state employee, and another state employee whom the man suspected was having an affair with his wife.(2)
Another example: The Arizona Supreme Court held that even though a county official claimed one of his email records on county computers was personal (and not subject to the open records law), the record must be shown to a judge. The judge can then decide whether it is a personal record or a public record.(3)
To respond to these requests takes time and resources. Haphazard records management makes the job more difficult. Agencies therefore have incentive to keep organized, centrally-managed email records.
Greater Wash. v. Wash. Metro. Area Transit Authority
Consider for example the plight of the Washington Metro Transit Authority(4). A civil rights group representing disabled passengers sued the authority, alleging it provided too few para-transit services.
When the litigation stated, the transit authority told employees such as engineers to keep relevant emails. The authority did not have a central facility for long-term storage of e-mail. Its central email storage kept records for only 60 days.
Then, under the discovery rules of the litigation, the plaintiff demanded that the transit authority search for and turn over all email relevant to the lawsuit. It was learned, however, that employees had not done a good job keeping their e-mail. Some records were lost.
The court took this matter seriously. It ordered the transit authority to sift through voluminous backup tapes in search of missing emails. The court over-ruled the objection of the transit authority that to search through network backup records was unduly expensive and burdensome.(10)
The case shows the value of retaining good, centralized email archives.
Contact us for a free 30 minute email policy consultation.
1. 219 F.R.D. 93 (D.Md. 2003).
2. Associated Press, “Judge: Ky. Man Can See His Wife's E-Mail,” Nov. 20, 2007.
3. The Reporters Committee for Freedom of the Press, “Judge must decide whether e-mail is private,” April 27, 2007. http://www.rcfp.org/news/2007/0427-foi-judgem.html
4. Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 2007 WL 1585452
(D.D.C. June 1, 2007).
©Copyright Benjamin Wright 2008.
