Heres some news that will probably
make your skin crawl: those computer messages that you thought were deleted
are probably still lurking on the computer. Not only are those electronic
fingerprints probably still on the computer, but chances are good that
they can be recovered using sophisticated software and state of the art
computer laboratory facilities.
The opportunity to recover those hidden/deleted computer messages and
data has created new areas of opportunity and concern that businesses
must be alert to. The recovery and reconstruction of those hidden and
"deleted" pieces of evidence have spawned a new discipline of
Computer forensics in one of the hottest new tools in litigation. The
request for and search of a computer hard drive is now a common litigation
tactic in the discovery process. There are a remarkable number of cases
in which the computer evidence that is uncovered has had dramatic impact
on the course and outcome of the case. Electronic data, and in particular
e-mail communications, have a number of different attributes that make
for a fertile ground for exploration in litigation.
First, increasingly many employees have access to e-mail systems. The
access to e-mail communication systems opens up a whole new world of communication
opportunity for company personnel. Because of the relative ease of delivering
an electronic communication, the sheer volume of statements, admissions,
conflicting information and correspondence has increased dramatically
over the last five years. This volume increases both the likelihood of
a "smoking gun" type of statement and evidence of mitigating
facts to explain the context of a particular communication or statement.
Even for a relatively small organization, the volume of messages sent
electronically can be staggering. For example, a 1,000-person organization
with each person sending eight messages per day results in 2 million electronic
messages annually, not taking into account redundancies and send-on messages.
Second, electronic communications often have an informality and truthfulness
about them thereby making particularly credible evidence at trial if properly
authenticated and admitted. The credibility of this evidence is derived
from the perception that the guard of the e-mail writer is down and that
truth often emerges when a more informal and spontaneous communication
Third, the electronic communications are often accompanied by a company-sanctioned
statement about the intended purpose of the communication and a "signature"
tag that implies that the communication is being sent on behalf of the
company. These communications can be viewed as representing an official
position of the company although they may actually only represent a personal
view or opinion.
Fourth, while there may be a perception that the electronic communication
is transitory and can be easily deleted, this perception almost always
is at odds with the reality. This "perception gap" is created
by the existence of multiple copies of the electronic communication and
the likelihood that it was sent on to multiple persons who themselves
perhaps have multiplied the number of extant copies of the communication.
This electronic proliferation creates numerous discovery opportunities
for a single communication. In addition to the natural electronic proliferation
of the electronic communication, the deletion of electronic data is often
difficult to accomplish. Increasingly, technology is available to recover
"deleted" documents in a manner that preserves the evidentiary
integrity of the data. This reappearance propensity has been labeled "the
vampire effect" of electronic data.
Finally, in many instances the company has no formalized system for organizing
or retrieving electronic communications, nor does the company have policies
and procedures regarding the retention of such electronic data.
So what is a company to do? Here are some sure fire issues to consider:
The company should establish an e-mail, Internet-usage policy
for its employees.
The company should educate employees on the importance of
appropriate communications via e-mail.
The company should establish a document retention policy
that addresses electronic data.
James Snyder is general counsel
and the national director of BKD, LLPs Forensics and Dispute Consulting
Services group. He can be reached by phone at 816.701.0260 or by e-mail