The auditors received a copy of the Senator's calendar from the Senator, which they describe as a "non-forensic" copy. They then compared it with a copy from the server, and surprise! There were approximately 500 deletions. The deletions on the produced copy were explained as having been made because of the "clean up" advice, to remove entries irrelevant to the audit, and to protect third party privacy.
My purpose here is not to comment on the political issues of this affair, but those that may be instructive for the purposes of e-discovery.
- If you are going to ask the target of an audit for a copy of anything, you should specify the precise manner in which the data is expected to be preserved, collected, prepared and presented.
- If you are the target of an audit, and not given instructions about the ESI, then ask for direction
- If you obtain legal advice that it is permissible for you to protect third party data, confidential, trade secret, cabinet confidences or other private or privileged information, do so in a transparent, auditable way, such as marked-up redaction
- If you are legally permitted to produce only a portion of a calendar, the better approach is to export only those entries that are relevant, rather than delete or edit records before the export. Individual entries containing irrelevant or third-party personal information can then be redacted.
- In civil litigation, it is even more important to preserve the integrity of a PST file, even if you don't believe it is relevant in its entirety.
- If you are a lawyer advising your client in an investigation or litigation, make sure you are very clear on the necessity to preserve ESI, and the proper ways to sever irrelevant and otherwise non-producible information.
- Last month, a lawyer in Virginia advised his Plaintiff client to "clean up" his Facebook page to thwart discovery efforts of his opponents. The client deleted 16 prejudicial photos. The lawyer was suspended for five years, and he and his client were ordered to pay the defendants $722,000 in costs.
It will be interesting to see what happens as this Canadian political audit and now police investigation unfold. In the end, lawyers advising their clients should consider at least three things:
- Advise your client that, if they are in litigation or under investigation, they must resist the urge to delete or modify personal, prejudicial or incriminating material
- Advise your client that it is possible (and commonplace) to produce only relevant data from an email or calendar file in a way that preserves the entirety of the file
- If possible come to an agreement with opposing counsel or investigating authorities about the precise manner in which ESI will be preserved, collected, protected and produced.