E-Discovery and E-Mail 

Last week I mentioned an important legal case in passing, and then I realized I needed to dig into the topic a little more deeply.

By now everyone in the country knows that Hillary Clinton had a problem with email.  This is the first most people heard about legal issues and emails, but for Lawyers the landmark case is something called “Zubulake vs UBS Warburg”.

Back in 2003 Laura Zubulake sued her former employer, UBS Warburg, for discrimination.  Initially she produced over 450 pages of emails to prove her point but UBS only produced 100 pages of emails.  When her attorneys requested the rest of the documents, UBS argued that it would be too difficult and expensive to restore the old emails from backups.

The case dragged on with the Judge increasingly losing patience with UBS Warburg, and her rulings set the precedent for handling of digital evidence used today.  Key points include that:

  1. Digital evidence must be preserved like paper evidence.
  2. Once it is known there is a chance of litigation, digital evidence cannot be destroyed
  3. Lawyers have a duty to monitor the compliance of their client with a “litigation hold” on destruction
  4. Sanctions can be imposed for spoliation of digital evidence

All too often I speak with a client who is super concerned about the need to shred a small number of boxes of paper… and then they casually mention that they also have a shoebox of old hard drives.  That shoebox could contain millions of pages if printed out!

The big takeaway here is that how you store records doesn’t matter anymore.  The same rules apply whether the information is written on paper, printed out, or recorded and stored digitally.   The records retention and destruction rules apply equally.

Did you know that Quality Shredding has a custom-built mobile hard drive shredding truck to shred all kinds of hard drives and flash drives to NAID AAA specifications?  And here is the big question… do you know what your IT Person is doing with your old hard drives?

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