Thursday, April 13, 2006

Hard drives and pending litigation

In a scenerio that's becoming more common, computerized evidence can play an integral part in pending law suits. And the destruction of that evidence can be significantly harmful to a case.

Delaware's State Police have been the target of at least 17 lawsuits since 1997, according to a Wilmington News Journal article from last June.

In a couple of those cases which targeted the former head of the State Police, who left the force last year, a federal judge has made a ruling sanctioning the state police for erasing their former chief's computer.

According to the News Journal, the hard drive for the computer was reimaged and reassigned according to routine practices within the agency.

There's probably a lesson there to be learned that goes beyond these cases against the Delaware Police force.

A recent New York Times article, Deleting May Be Easy, but Your Hard Drive Still Tells All, discusses some of the computer forensic issues that involve hard drives that have been written over. It starts off with an example of a software company almost missing out on a $ 64 million payday, when documents involved in a sale of a company they partly owned showed they were only five percent owners, instead of fifteen. The electronic documents that indicated the percentage of ownership had been changed to remove a "1" which would mean that they would only receive $32 milliion from the sale instead of $ 96 million.

A consulting group, which specializes in electronic discovery and forensics was able to determine when the document was changed, and who made the changes. It can be expensive to conduct that type of reconstruction of evidence, but this was a case where the cost was probably worth paying.

A findlaw article from a couple of years ago covers a number of points about this aspect of discovery: Delete At Your Peril: Preserving Electronic Evidence During The Litigation Process. As they note there, in these days after Enron people often know that they shouldn't destroy paper records that might be asked for during discovery, but electronic documents might be overlooked at a source of information that should be maintained and preserved.

These can include such things as:
  • e-mails,

  • electronic calendars and

  • drafts of documents

Many companies have data retention policies that determine when data of different types can be purged. But, those policies need to adapt and change when pending litigation may find some of the data possibly relevant to a law suit.

There are a number of potential risks involved in not preserving evidence that might be relevant to a pending case. These can range from sanctions to something significantly more serious. As the Findlaw article notes:
At a minimum, if you have been found to have destroyed evidence, the judge may draw or the jury may be told it can draw an inference that the materials you destroyed were harmful to your case. Courts can also impose monetary sanctions and exclude evidence and witness testimony as a result of misconduct. In extreme circumstances, if a court finds clear and convincing evidence that you have intentionally concealed or destroyed evidence, your case could be dismissed (if you are the plaintiff), or you could be found summarily liable without a trial (if you are the defendant).

As the judge noted in the Delaware case, the State Police probably should know better than to have reused the hard drive in question. If you run a business or organization of some type, do you have policies in place for the preservation of electronic documents?

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