E-mail archives in court

In the past few years, e-mail has become a daily fact of life for practically everyone. For the most part, the ability to store and retrieve the large volumes of e-mail created in conducting normal business is a good thing. In some instances, however, it can create problems.

Whenever an organization is sued, it should expect to receive a formal request to produce all documents, including electronic ones, related to the lawsuit. In most cases, such requests will extend to the e-mail messages the organization has archived and stored for backup and disaster recovery. Under what conditions an organization will be required to comply with a request to produce e-mail backups is an emerging and somewhat difficult question.

One of the first significant cases to address these issues was the "Filegate" lawsuit that some appointees from the Reagan and first Bush administrations brought against the Clinton administration, alleging it used official government investigation documents for political purposes. During discovery, the petitioners sought, among other things, copies of government e-mail messages that had been deleted from office computer hard drives but were still retained on government backup systems.

The government objected on the grounds that the cost and difficulty of complying outweighed any potential value of the information. An information technology specialist from the Executive Office of the President testified that searching only one hard drive would require approximately 265 hours. At $300 per hour, the going rate for such intensive work, the examination would cost almost $80,000, the specialist testified. The court avoided the problem by directing both sides to find alternative ways to satisfy the petitioners' demands.

Just last year, the same issue arose in a lawsuit by a disgruntled government employee against the Justice Department. Since there was little precedent in the matter, the presiding judge made the Solomonic decision "to take small steps and perform, as it were, a test run" by ordering Justice to restore the e-mail messages of just one individual for a limited period, while documenting carefully the time and cost of doing so. The judge indicated that the balance of the dispute would be decided on the basis of that information and the relative value of what was found on the archives.

In two cases decided this year involving commercial companies, courts in New York and Louisiana adopted a somewhat similar "balancing" approach to the issue. Under this approach, the courts readily ordered the production of documents from electronic archival systems. However, the courts shifted some of the cost of doing so from the party producing the documents to the party requesting them, in recognition of the special issues involved. This "market approach" leaves it to the party requesting the documents to decide whether the potential value of the information is worth the cost of obtaining it. This is probably the fairest approach. n Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.

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Materials discussed in this column include: Alexander v. Federal Bureau of Investigation, 188 F.R.D. 111 (D.C. Dist. 1998); Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999); McPeek v. Ashcroft, 202 F.R.D. 31 (D.C. Dist. 2001); Rowe Entertainment, Inc. v. William Morris Agency, Inc., No. 98 Civ. 8272 RPP JCF (S.D.N.Y. January 16, 2002); Murphy Oil USA, Inc. v. Fluor Daniel, Inc., No. Civ. A. 99-3564 (E.D. Louisiana February 19, 2002).