Electronic media: management and litigation issues when "delete" doesn't mean delete.

• Author: Olmsted, Betty Ann

CYBERSPACE, that non-observable, electronic landscape consisting of electrons, magnetic fields and light pulses, has produced new ways of creating, transferring and storing digital data. The proliferation of electronic mail (e-mail) and voice mail, coupled with a growing dependence on electronically stored information, have created dramatic changes in litigation and the discoverability of computer-generated communications.(1) As defense counsel, you need to address your clients, vulnerability to discovery requests of potentially damaging electronic "conversations" that have long since been forgotten, but not destroyed.

Advances in computing hardware storage media enable business organizations and law firms to store millions of messages on backup magnetic tapes and optical disks, where archived documents can accumulate, perhaps unnoticed, for years. Law firms must address their clients' vulnerability to the likelihood of discovery requests of potentially damaging electronic "conversations" long since been forgotten, but not destroyed. These data can lead to painful revelations and possibly to large settlements or adverse awards.

One of the fastest-growing branches of digital technology is e-mail, an electronic medium that allows computer users to "chat" electronically with other users internal and external to an organization's network of computers. Voice mail, another electronic medium that has found widespread acceptance in the workplace, turns "missed" calls into digital messages that can be retrieved easily by telephone anywhere worldwide.

As workers become increasingly comfortable with communications technology, e-mail is replacing the interoffice memo, and voice mail is replacing written phone messages. Unfortunately, corporate users of digital communications are often ill-prepared for the voyage into the world of electronic media discovery.

Electronic media, like other business tools, come with their own management and legal issues. Digital e-mail and voice mail systems are stored electronically and are technically discoverable in litigation. Digital backup techniques provide low-cost, long-term storage of billions of pages of materials in a fraction of the physical space needed for paper documents. This exponentially growing base of digitally generated documents can include potentially damaging information discarded years ago, which could one day surface in litigation.(2)

Users often fail to recognize that, in the eyes of a court, electronic impulses stored as e-mail documents and voice mail messages constitute legal documents.(3) Every stored piece of digital information, no matter how meaningless or trivial, can eventually be subpoenaed, seized and used against the companies in whose computers the electronic documents reside.

Many employees use e-mail and voice mail to send carelessly composed messages, which may seem appropriate at the time but when introduced out of context in court could expose employers to potential liability. Carelessly composed conversations can remain on company hard drives or tape backups for years, ready to rear their ugly heads when subpoenaed by an adversary in litigation.

WHAT ARE ELECTRONIC MEDIA?

Electronic documentation is pervasive in all segments of business. E-mail is the easiest and most effective way for computer users over the world to interact with each other almost instantaneously. Users need not understand how messages actually move from one computer terminal to another. In fact, the appeal of e-mail is its ease of use and easy accessibility. Advancements in voice mail technology also have produced user-friendly products, which are finding increasing acceptance in business and industry. Voice mail carries the same management and litigation issues as e-mail.

Most e-mail users erroneously believe that e-mail is ephemeral in nature, whereas in reality it can be much more permanent than paper documents. Unlike paper documents, which can be purged and shredded, electronic messages can survive indefinitely, long after they are considered "deleted" from a system, accumulating quietly in a computer system to provide fuel for later litigation.

Here's an example of how most e-mail messages are created and stored. When a user sends someone an e-mail message, the original document is not sent. Instead, the user's computer stores the original document and produces a copy it sends to a file server. The file server, in turn, stores the copy and produces another copy to send on. Depending on the computer network structure, the e-mail message may go through two or more servers, with each storing a copy and making new copies to forward to the intended recipient.

Each time the message is "handled" by another server or personal computer, another copy is made. By the time the message reaches the recipient, several copies have been generated and stored. For each additional recipient of the e-mail message, the number of potential electronic copies of the document increases exponentially.

After receiving an e-mail message, the recipient may decide to "delete" the message received. But only that recipient's copy will be "deleted"; other copies of the document will reside with other recipients and file servers. Unless and until all copies of the original message are effectively "deleted," other copies will exist somewhere and probably will be saved on that system's backup media.

WHAT IS DISCOVERABLE?

Digital documents such as e-mail and voice mail are discoverable under Rule 34(a) of the Federal Rules of Civil Procedure, which broadly includes documents stored on punched data cards, disks, recording tapes and computer banks as being discoverable to the other party "in reasonably usable form." Requests for electronic data are routine in discovery proceedings.(4) All electronically stored data...