Discoverability of "deleted" E-mail: Time for a Closer Examination
| Publication year | 2002 |
| Citation | Vol. 25 No. 03 |
I. Introduction
In the past ten years, electronic mail (e-mail) has significantly altered how we communicate with each other in the industrialized world.(fn1) Attracted by its relatively low cost, speed, and ease of use, individuals and businesses have turned to e-mail to replace or supplement traditional communication tools such as the written letter or the telephone.(fn2) As a result, legislatures and courts have been forced to examine whether existing legal structures are sufficiently flexible to resolve issues that are either not present in other communications tools or present but to a different degree.(fn3)
Because e-mail rapidly became a means of transporting large amounts of information, it was not surprising that privacy was one of the first issues to be raised. The legal community was faced with difficult questions such as whether employers should be allowed to monitor employee e-mails(fn4) and how to deal with the possibility that e-mails could be intercepted without authorization.(fn5) Other novel legal issues are related to e-mail's unique characteristics. For example, mass marketers were attracted to e-mail because they could transmit thousands of unsolicited messages (or "spam") with very little effort and very little cost. To counteract mass marketer's abuse of e-mail's efficiencies, many states quickly enacted anti-spam laws that placed restrictions on unsolicited e-mail messages.(fn6)
The e-mail revolution also had a profound effect in the area of civil discovery. As e-mail use became more commonplace, litigators quickly recognized the wealth of potential evidence that could be found in an opponent's e-mail archives. Many litigators were also pleased or shocked (depending on whether they were the requestor or requestee) to learn that it was also possible to recover e-mail messages that had apparently been discarded through the delete function found in all e-mail programs. In fact, it quickly became apparent that it is very difficult for a person to simply discard an unwanted or improper e-mail message. As a result of this technical quirk, many millions of new e-mail messages are created every day, and despite their author's best efforts to delete them, it remains technically possible to locate and produce these messages during pre-trial discovery.
The legal question of whether these "deleted"(fn7) messages should be produced is governed by the Federal Rules of Civil Procedure. The current Federal Rules apply the same criteria to the discovery of e-mails that have been applied to paper-based discovery for decades. As a result, during the discovery phase of litigation, it has become increasingly common for a party to request that the opposing party recover and produce large numbers, often hundreds of thousands, of deleted e-mail messages through use of special "forensic" computer techniques.
This Comment will argue that the current discovery rules allow for the over-disclosure of deleted e-mail messages when considering public policy concerns such as communications efficiency, individual privacy, and free speech. However, before this argument can be made, it is necessary to define what should be the proper scope of civil discovery: how much production of information is too much? In a recent article discussing modern discovery reform, Professor Jeffrey Stempel offered a succinct and workable test for analyzing whether a suggested restriction on the scope of discovery is justified.(fn8) According to Professor Stempel, any arguments for restricting or, for that matter, expanding discovery should be made with reference to the central inquiry of whether "disclosure and discovery [are] providing the information to which litigants are rightfully entitled without requiring the production of an unacceptable amount of information that is too extraneous, disproportionately expensive to produce, private or privileged, or otherwise deserving of protection on public policy grounds."(fn9) Professor Stempel's formula suggests that the appropriate level of discovery can be found by balancing the litigants' right to access to information against a number of other concerns including cost, privacy, and other public policies.
In the case of deleted e-mails, this Comment will argue that the discovery rules presently require disclosure of an unacceptable amount of information. In particular, public policy concerns such as communication efficiency, individual privacy, and free speech should outweigh the rights of a litigant to access deleted e-mail correspondence without some showing of particular relevance or need. Perhaps the easiest way to expose the public policy issues involved in the production of deleted e-mails is to analogize it to a more familiar context such as discarded paper-based correspondence. As applied to deleted e-mails, the current rules are the equivalent of requiring a litigant to first dig through their garbage for huge amounts of shredded and discarded paper correspondence and then expend considerable resources to repair the letters and documents found. These documents are then handed over to a litigation opponent and may appear as evidence in a civil case.
Although this analogy is useful to expose some of the potential issues, to fully comprehend the nuances involved with discovery of deleted e-mails, it is first necessary to understand the unique nature of e-mail. For this reason, Part II of this Comment will outline some of e-mail's advantages over other communications media to help explain the rapid rise in e-mail use. Part III will then explain, in layman's terms, how e-mail actually works and discuss some of the reasons why e-mail archives are often considered as likely to contain "smoking gun"(fn10) messages-the kind of evidence that can drastically affect the outcome of a case.(fn11) But what is it about e-mail that can make it such a potent evidentiary weapon? The answer lies in the combination of three factors discussed in more detail later in this Comment. First, a vast number of e-mails can be stored at a relatively low cost. Second, contrary to popular belief, an e-mail is extremely difficult to delete and often lingers in a later discoverable form. Finally, e-mail users tend to adopt a casual tone, using e-mail more like the telephone than a letter.
Due to this unique combination of factors, it is likely that the widespread discovery of e-mails is here to stay and will play an increasingly important role in litigation. What remains uncertain is whether the existing discovery rules are sufficiently flexible to incorporate such a significant change. To provide a background for answering this question, Part IV will discuss the existing discovery rules, the fundamental principles on which the rules are based, the existing limitations on the permissible range of discovery, and the extent to which the existing rules allow for extensive discovery of "deleted" e-mails. After examining the existing framework, Part V will assess the current rules' impact on e-mail usage, focusing on the fact that there is already evidence to suggest that the current framework has had a chilling effect on the type of information communicated.
In Part VI, this Comment will argue that the application of the current rules has failed to take into account important public policy considerations. The discussion will center on two policy concerns. First, the current rules might have a profound, negative effect on the efficiency of communication in our modern, wired world. Second, the rules neglect the privacy concerns of individuals who are subject to discovery of their deleted e-mails, causing negative effects on the individuals in deciding what information they should include in their e-mail correspondence. Given these concerns, a question is raised as to whether the mere fact that e-mails may be restored and recovered long after their deletion should automatically require them to be accessible in litigation. Perhaps technological ability should not necessarily set the standards of the law.(fn12) This Comment will propose a solution in Part VII-deleted e-mails should be presumptively undiscoverable unless a requesting party can make a particular showing of relevance.
If, as this Comment will argue, the current discovery rules may seriously inhibit the use of e-mail to communicate, it is important to understand what may be lost. For this reason, it will be useful to briefly analyze the general benefits that e-mail has to offer.
II. Societal Benefits of E-Mail
If e-mail is indeed, as it has been described, a revolutionary communications tool, regulations having a detrimental effect on its use should be carefully considered. Once an attempt has been made to describe and quantify the general societal benefits of e-mail, the question of whether the current rules of civil discovery have had, or are likely to have, a chilling effect on its everyday use can then be examined. Using Professor Stempel's test for whether a restriction on discovery is justified, the negative effects on communications efficiency, privacy, and speech can be weighed against the primary reason for allowing a requestor access to information: facilitation of the search for the truth of the matter in dispute.(fn13)
E-mail benefits may be divided...
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