United States: Unpleasant Discovery

You've had a good week. The testing programmes have gone well. The customer base is happy and good relations abound. The only spike in your corporate stress map is Linda. Linda is a junior technician who keeps complaining about discrimination. Linda is unhappy with her pay rise, dissatisfied with her bonus, angered at the promotion of others, and generally disaffected. This week she even recorded her discrimination claim with the Equal Employment Opportunity Commission (EEOC). Linda has so much to say for herself that one senior test engineer suggests relocating her to the wind tunnel. That e-mail got a big laugh before it was deleted.

In my last column entitled "Mind Your Language" (September 2005) I suggested that there is one thing worse than getting bad data as a result of careless language and, that is, getting a bad day in court as a result of it. By now it is obvious where this fictitious story about Linda is going.

Fast forward two years. Linda has been dismissed but she has commenced a law suit against you. She claims discrimination based on gender and alleges that you retaliated against her for reporting the company to the EEOC. Linda's attorneys want discovery of your documents and records.

In our commercial society storage and transmission of data has now gone, almost overnight, from paper to megabyte. These days if you find yourself litigating you will have to come to terms, not just with discovery, but with "e-discovery". It is estimated that 83% of communications are now electronic. Whoever you are litigating with, on whatever subject, you will have to give "e-discovery" of all computer data, graphics, databases, unpublished drafts, even metadata. And, of course, the killer category, e-mail.

In Linda's case, her attorneys say that there might be deleted e-mails which show discrimination or retaliation. They want you to restore and then produce all your network "back-up" tapes, at your own cost. Your attorneys resist this on the basis that it will cost a six figure sum only to produce duplicative data. A mini trial ensues.

Like any trial, a validation test is needed. So the Judge comes up with one. He orders you to produce and restore a two month sample of back-up tapes. But when you do this hundreds of e-mails which you had carefully deleted come back to life. Someone has to justify why they were deleted. Someone also has to explain to the lady Judge that "relocate her to the wind tunnel" was a joke, along with other similar e-mails. The Judge lacks all appreciation for your special brand of corporate humour. She orders you to restore everything, pay the cost of doing so, and pay Linda's attorneys to review the new material.

Then it then gets worse. Some of the restored e-mails refer to other e-mails. But where are they? It turns out that they are still missing. The case is rapidly becoming an endurance trial of your document management system. It seems that you have lost some back-up tapes. Your protocols for preservation are reviewed by the Judge and found wanting. Linda's attorneys say the Court is entitled to infer that the lost e-mails would have been unfavourable to you. The Court agrees.

Could it really happen? The illustrations which I use in these pages are all lifted and adapted from real cases. On almost exactly these facts an equities trader was recently awarded $29.2 million by the United States District Court of the Southern District of New York, Laura Zubulake -v- UBS Warburg LLC. Commentators agree that this verdict was largely influenced by the evidence of deleted e-mails, failed attempts to delete even more e-mails, and an instruction from the Judge to infer that the missing e-mails would have been unfavourable.

The legal community, I am proud to say, has stepped up to support to the General Counsel and the I.S. Director. Many of the major law firms now have state of the art solutions for capturing and managing e-discovery. They also offer preventative coaching on how to establish systems with both the redundancy and the rigidity to withstand the e-discovery process.

It is a chilling thought that there is no place to hide e-mails in which you make admissions, cut corners, snipe, discriminate or disparage. So don't send them.

And if you have sent them, bear in mind that the "paper trail", beloved of lawyers for centuries, is now being replaced by the "data trail". It is more voluminous, more expensive, and potentially lethal. Innocent e-mails could be presumed guilty just because they are missing. So don't lose them.

Reprinted with permission.

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