Houston Area DA Sanctioned for Contempt after Deleting E-Mails

The strange saga of Harris County District Attorney Chuck Rosenthal is, hopefully, winding down. If you weren’t aware, Rosenthal, has been in the news in Texas for a while, when e-mails containing racist and pornographic content, and love letters to his secretary were found on his work P.C.

In response to civil rights suit against the county, Rosenthal had produced over 1,500 emails to the court.

Newsweek described the situation like this:

Rosenthal is back in the headlines again. Last December, as part of a federal civil rights lawsuit into how justice is meted out in the county, he turned over the (partial) contents of his government e-mail account. And what a batch of e-mails it was. Black ministers called for the Republican to resign because of racist material, including a cartoon depicting an African-American suffering from a “fatal overdose” of watermelon and fried chicken. There were adult video clips and love notes from Rosenthal to his secretary, his mistress during a previous marriage.

Despite the copious production, the DA was found to have failed to have produced another 2,500 e-mails relating to the civil rights case.

A judge listened to testimony…to decide if Harris County’s top prosecutor should be punished for deleting more than 2,500 e-mails after he was ordered to produce them, KPRC Local 2 reported.
[...]
Kelley said he wants the judge to hold Rosenthal in contempt or sanction him for the destruction of the e-mails.

Rosenthal has said in court documents he thought the 2,500 e-mails he is under order to produce were backed up elsewhere and has called the decision to erase them an error in judgment.

As we all know, this is not something a party, especially a party who is an attorney, should do:

Harris County District Attorney Chuck Rosenthal should have known not to delete more than 2,500 e-mails that a court had ordered him to produce, the general counsel for his office testified Thursday in a hearing on whether Rosenthal should be held in contempt.

General Counsel Scott Durfee said Rosenthal was “crestfallen and surprised” when he found out the e-mails had not been backed up elsewhere and could not be recovered. But as an attorney, Rosenthal should have known that the e-mails were evidence and should not be deleted.

“This is not something that would be foreign to a practicing attorney?” U.S. District Judge Kenneth Hoyt asked Durfee.

“It would not,” he replied.

Rosenthal initially resisted calls for resignation, and calls for him to drop out of the next election. Ultimately, though, he found no sanctuary from fellow politicos, and announced his resignation, although he didn’t quite completely acknowledge his responsibility in the affair (no pun intended).

Rosenthal, 62, said a prescription drug combination had impaired his judgment and said media coverage of his e-mails — which included sexually explicit and racist content and affectionate notes to his executive assistant — had taken its toll on his family.

“Although I have enjoyed excellent medical and pharmacological treatment, I have come to learn that the particular combination of drugs prescribed for me in the past has caused some impairment in my judgment,” Rosenthal wrote in his resignation letter.

With respect to the emails, he stated:

“I now understand that I am unable to rely on my memory regarding the steps I took to manage the contents of my desktop and need to rely on reconstructing events from available documents and records,” Rosenthal writes in the declaration. “I have now consulted a medical specialist and am informed by him about conditions that have affected my perception and recollections of the past months. While I am seeking treatment to address these matters currently, I am concerned and wish to ask the Court to take into account that my prior testimony and Declaration must be considered in this context.”

Yesterday the Houston Chronicle reported that the Judge, unsurprisingly, was not impressed:

In blistering and scathing language, Hoyt’s court order rebuked Rosenthal for knowingly violating an Oct. 31 subpoena seeking his e-mails.

Hoyt criticized Rosenthal for showing “an intentional willfulness” to disobey the law.

“This conduct reveals a man confident in his status, entrenched in his brand of law,” Hoyt wrote. “He would not or could not acknowledge an authority beyond himself.”

Various contradictions and misrepresentations made Rosenthal’s testimony unreliable and incredible, Hoyt said. “The court views his conduct as venomous and hostile to the judicial process,” Hoyt wrote.

Rosenthal gave several explanations for why he deleted the

e-mails, Hoyt noted, such as believing his general counsel had printed hard copies of the documents and claiming he thought the documents were preserved on the computer network’s backup tapes.

Rosenthal also later testified that he deleted the e-mails to increase his work efficiency and to free memory space on his computer, Hoyt said.

“There is no evidence that Rosenthal’s computer memory space was threatened by additional e-mails or that, in fact, it was short of space. Hence, these reasons — all implausible inconsistencies — defy the law of common sense,” Hoyt wrote.

Rosenthal was fined a total of $18,900; with the County’s General Counsel responsible for $5,000 of that for failing to properly advise Rosenthal on how to properly comply with the subpoena requiring production of the email. The county will meet later to decide how much, if any, of the fine they will assume.

The county has already had to settle the civil suit:

Harris County officials Monday settled a civil rights lawsuit that led to the district attorney’s resignation, KPRC Local 2 reported.
[...]
Harris County commissioners said they were approached with a $1.7 million settlement offer over the weekend.

“The county (Commissioners Court) is concerned about the liability,” Commissioner Steve Radack said. “We are trying to limit as best possible the exposure to the taxpayers in this lawsuit.”

The county will also pay court costs and the Ibarras’ attorney fees.

The newly appointed interim DA now has his hands full with trying to restore confidence in the integrity of the office.

Magidson will serve as interim district attorney until the end of December. During that time, Magidson promised he would restore public confidence
“We’re going to prosecute these cases zealously but they are going to be tempered with justice and we are going to make sure we are doing .the right thing,” he said

The only final comment I have is that the $18,900 is hardly excessive, considering the court’s “blistering” language. Perhaps the court considered the ex-DA’s current plight, and the large settlement amount, in its calculations. If this had been an attorney from a private firm, however, I wonder if the result would have been different?

Fun with e-mail

Oops. According to the ABA Journal Online:

A misdirected e-mail from Credit Suisse helped set the stage for two lawsuits filed this week by two private equity firms seeking to purchase Clear Channel Communications, the New York Times reports.

The suits accuse Credit Suisse and five other banks of breaching a contract to finance the $19.5 billion sale and interfering with the purchase agreement. The court filings come less than a year after the buyers, Bain Capital and THL Partners, received an unusual e-mail from Credit Suisse. The July e-mail contained confidential documents discussing how the banks planned to renege on terms of the lending agreement, the Times story says.

Case Blurb: Parkdale; Court examines production of Lotus Notes documents for undue burden

According to the Plaintiffs’ briefs, the disputed emails are presently in LotusNotes format, rather than in a less accessible backup media. Although the Plaintiffs did not offer during the hearing a specific cost projection for converting and searching the subject emails, they contended in their briefs that the cost of producing Mr. Smeak’s emails was no more than $20,000, a fraction of the expense at issue in Zubulake, 217 F.R.D. at 316, where the cost of producing 5 sample disks alone was $19,000. Taking into account the factors listed in Fed. R. Civ. 26(b)(2)(C)(iii), including the amount in controversy ($3 million policy limit less $280,319.00 previously paid to reimburse Plaintiffs for a portion of their costs of defense), the parties’ apparent resources, and the importance of the proposed discovery in resolving critical factual issues, the Plaintiffs have not articulated a sufficient basis to relieve them of the obligation to produce these emails. Accordingly, the Plaintiffs’ objections to producing these documents, as expressed in their briefs and renewed in a modified fashion during the hearing, are overruled.

Parkdale America, LLC v. Travelers Cas. & Surety Co. of Am., 2007 WL 4165247 (W.D.N.C. Nov. 19, 2007)

Craig Ball: ESI does not equal Native Data

Craig Ball writes that electronically stored information is not necessarily native data.

Reviewing the correspondence between the counsel, I spotted the problem. The e-mail was there, but in rich text format. Like many lawyers new to e-discovery, defense counsel regarded electronically stored information and native data as one and the same. They’re not.

The IT department had dutifully located responsive e-mail on the mail server and furnished the messages as RTF, a generic format offering easy access and electronic searchability. Any computer can read RTF, so it’s a reasonable choice. But it’s not the native format.

He goes on to explain that e-mail’s native file is the container file in which the message is stored. At the enterprise level, that might be and MS exchange database (extension = .edb) or a lotus notes database (extension = .nsf). On workstations, the container file will likely be an outlook database (.pst). By the way, an outlook database is merely a modified MS Access database. The messages are just entries in database fields, so the “native format” of a message is something of an exercise in creative deduction.

And because of that, Mr. Ball states:

How, then, do we realize the considerable benefits of native production for e-mail? The answer lies in distinguishing between production of the native container file and production of responsive, non-privileged e-mail in electronically searchable formats that preserve the essential function of the native source, sometimes called quasi-native formats.

I’ve not heard the term “quasi-native,” but it seems a reasonably serviceable name for the concept. The rest of his article discusses the way in which a quasi-native production would work.

To Delete or Not to Delete, if you work for the Government…

We’ve already posted once about the difficulty in deciding when it is appropriate to delete e-mails. But that article was written from the corporate perspective. Think, then, how much more difficult it can be for a state institution to comply with transparency rules:

An e-mail pops into your inbox. You scan over it. Now you’ve got a decision to make: Delete it, or keep it?

These decisions are made daily by hundreds of millions of people around the world, often without more than second of thought.

That may be fine if you’re reading a friend’s message or a consumer solicitation on your home computer. But if you are a public employee, a hasty deletion could be a crime. Really.

The AP writer is not likely familiar with compliance and discovery issues, or he wouldn’t express such surprise. Basically, the article details the difficulties on deciding when it’s okay to delete, and when it isn’t, and government units subjected to rules on openness and transparency use different templates than do businesses. So how is the fateful decision made? Same as it is in most corporations:

The responsibility essentially falls on each government employee sending and receiving an e-mail to judge whether it can be deleted or should be saved.

And ultimately, that will either have to change, or there will be consequences…

Thinking inside the box: Datakos Blawg takes on e-mail retention

Although acknowledging that there exist no perfect solutions, the blogger behind Datakos lists items that may help to control e-mail rention issues. Many are sensible, straightforward suggestions. In describing an open source solution (which remains unnamed in the post), he describes the process for implementing litigation holds:

Through a basic, web-accessible interface, lawyers with permission-based access could run queries based on criteria derived from the legal or regulatory matter that required a hold. The query process had an audit trail. A hold, or multiple holds would attach to an email in the repository following the finalization of the query. Everything else not subject to hold had a limited shelf life in the repository and was purged periodically (e.g., every 90, 120, 180 days). The system is not perfect, but it worked.

Interestingly, this item mentions multiple holds, which was the central theme in one of the comments we’ve received on the subject of litigation holds.

Case Blurb: Lorraine; How to Authenticate E-mail

Although courts today have more or less resigned themselves to the fact that “[w]e live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population, and is of particular importance in the professional world,” Safavian, 435 F.Supp.2d at 41, it was not very long ago that they took a contrary view–”[e]-mail is far less of a systematic business activity than a monthly inventory printout.”

• (References Monotype Corp. PLC v. Int’l Typeface, 43 F.3d 443, 450 (9th Cir .2004) (affirming trial court’s exclusion of e-mail as inadmissible as a business record)).

Perhaps because of the spontaneity and informality of e-mail, people tend to reveal more of themselves, for better or worse, than in other more deliberative forms of written communication. For that reason, e-mail evidence often figures prominently in cases where state of mind, motive and intent must be proved. Indeed, it is not unusual to see a case consisting almost entirely of e-mail evidence.

[E]-mail messages may be authenticated by direct or circumstantial evidence. An e-mail message’s distinctive characteristics, including its “contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances” may be sufficient for authentication.

Printouts of e-mail messages ordinarily bear the sender’s e-mail address, providing circumstantial evidence that the message was transmitted by the person identified in the e-mail address. In responding to an e-mail message, the person receiving the message may transmit the reply using the computer’s reply function, which automatically routes the message to the address from which the original message came. Use of the reply function indicates that the reply message was sent to the sender’s listed e-mail address.

The contents of the e-mail may help show authentication by revealing details known only to the sender and the person receiving the message.

E-mails may even be self-authenticating.

• Under Rule 902(7), labels or tags affixed in the course of business require no authentication. Business e-mails often contain information showing the origin of the transmission and identifying the employer-company. The identification marker alone may be sufficient to authenticate an e-mail under Rule 902(7).
• However, the sending address in an e-mail message is not conclusive, since e-mail messages can be sent by persons other than the named sender. For example, a person with unauthorized access to a computer can transmit e-mail messages under the computer owner’s name. Because of the potential for unauthorized transmission of e-mail messages, authentication requires testimony from a person with personal knowledge of the transmission or receipt to ensure its trustworthiness.

(References Siddiqui, 235 F.3d at 1322- 23 (E-mail may be authenticated entirely by circumstantial evidence, including its distinctive characteristics));

(References Safavian, 435 F.Supp.2d at 40 (recognizing that e-mail may be authenticated by distinctive characteristics (901(b)(4), or by comparison of exemplars with other e-mails that already have been authenticated (901(b)(3)));

(References Rambus, 348 F.Supp.2d 698 (E-mail that qualifies as business record may be self-authenticating under 902(11)));

(References In Re F.P., A Minor, 878 A.2d at 94 (E-mail may be authenticated by direct or circumstantial evidence)).

The most common ways to authenticate e-mail evidence are:

• 901(b)(1) (person with personal knowledge),
• 901(b)(3) (expert testimony or comparison with authenticated exemplar),
• 901(b)(4) (distinctive characteristics, including circumstantial evidence),
• 902(7) (trade inscriptions), and
• 902(11) (certified copies of business record).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Mixing personal and business e-mail a dangerous practice

Personal Injury attorney Steven Klearman has posted an article on the dangers of, what he calls, “rogue email practices”:

Not too startling was the fact that the average employee sends and receives an average of 170 e-mails per day at work and that nearly a third of the respondents use their personal e-mail accounts (e.g. AOL, Yahoo mail, Hot Mail etc.) for business purposes at least twice a week. More startling is the fact that 17% of the respondents use their personal e-mail accounts for business every day.

He describes the “potential for legal liabilities” as “off the charts” because of these relatively common place practices. We have already posted about the the potential for harm to employees as well.

I have spoken to groups on subjects discussing the need to have a plan for litigation holds and data management once litigation can be “reasonably anticipated.” One of the functions of such preparations should be to minimize the growth of discoverable data sources beyond the company’s IT infrastructure. Mixing business with personal activities expands the potential data universe of discovery.

But that is countered by the fact that employees are often asked to sacrifice personal time for work, and the growth of e-commerce and online financial institutions. It is easier and quicker for an employee to pay a bill online than to take 30 minutes or more to do so in person. Greater variety in the types of data sources, and a higher level of integration of these devices into our personal life make commingling activities effortless. Drawing a line in the sand is not only difficult, but the very trends of technological progress may ultimately make it impractical.

DataKos discusses e-mail tape backup and rotation schedules

In this post, DataKos looks for a silver bullet formula for tape storage and backup rotations:

Backup tapes should be used only for disaster recovery, but many organizations still use those media for archives, retention or storage, with a trend toward increased use of archive storage technologies. Archiving does not solve the information lifecycle challenges organizations face and the more information retained the more that is subject to collateral legal disclovery.

Another item to note: the more often you use tapes for archiving and restoring, the less likely a court will find those tapes “not reasonably accessible” for purposes of discovery. If you only restore in times of disaster or error, you will greatly decrease the chances of having to do costly and burdensome restore operations once litigation strikes.

Managing ESI. Or not.

We recently posted an article pondering whether corporations’ attempts to limit the use of email would become a trend. In that post, we also noted that corporate policies and legal processes designed to manage data were fighting an uphill battle:

The dichotomy is quite amazing. IT is moving rapidly toward more distributed and disparate types of data sources. Trends like tele-commuting, the greater us of PDA’s, black boxes in cars, etc. At the same time, corporate policies and the legal world are trying to better manage these data sources for purposes of litigation readiness and limiting exposure to legal liability. The struggle continues.

We just now stumbled on an article illustrating just how difficult a task it is to manage an ever increasing volume of data. From Metro Corp Counsel, Jerry Barbanel and Thomas Avery of Aon Consulting note that use of emails is growing at a 30% rate. [HT: EDD Blog Online] From the article:

The greatest cost factor for companies involved in large-scale litigation or governmental matters is the increasing cost of electronic discovery. Electronic discovery costs have been rising at double-digit rates, with no end in sight. The most significant factor that contributes to electronic discovery costs relates to the enormity of e-mails that have to be collected, processed, hosted, reviewed and produced. With the amount of e-mails created by a company growing at a rate of 30% annually, it is critically important for companies to master an understanding of this technology as the potential costs of electronic discovery could prove to be devastating.

The article also sheds light on another fact of life: the increasingly disparate forms which sources of data take, such as PDA’s and external mail clients like Yahoo!. As the job of finding, collecting, filtering and reviewing data becomes more and more difficult, requiring ever more specialized skills, one might think that the legal world would be paying attention. One would be mistaken, however, according to a post on Thinking E-Discovery. While the post focuses on addressing the issue of EDD early in the litigation, and specifically, during depositions, Dennis Kennedy remaks that:

[A]ll the attention [to the new amendments to the FRCP regarding ESI] seems to have limited effect

I must agree, and I am confused about it. I am continually surprised by the lack of knowledge (and urgency) that exists in both the law firm and in-house counsel environments. The further we move away from the new amendments to the civil rules, the less tolerant courts will be of excuses by companies and counsel that they were unprepared to deal with ESI.