Hunting for Vampires
Electronic Data Discovery

Here’s some news that will probably make your skin crawl: those computer messages that you thought were deleted are probably still lurking on the computer. Not only are those electronic fingerprints probably still on the computer, but chances are good that they can be recovered using sophisticated software and state of the art computer laboratory facilities.

The opportunity to recover those hidden/deleted computer messages and data has created new areas of opportunity and concern that businesses must be alert to. The recovery and reconstruction of those hidden and "deleted" pieces of evidence have spawned a new discipline of computer forensics.

Computer forensics in one of the hottest new tools in litigation. The request for and search of a computer hard drive is now a common litigation tactic in the discovery process. There are a remarkable number of cases in which the computer evidence that is uncovered has had dramatic impact on the course and outcome of the case. Electronic data, and in particular e-mail communications, have a number of different attributes that make for a fertile ground for exploration in litigation.

First, increasingly many employees have access to e-mail systems. The access to e-mail communication systems opens up a whole new world of communication opportunity for company personnel. Because of the relative ease of delivering an electronic communication, the sheer volume of statements, admissions, conflicting information and correspondence has increased dramatically over the last five years. This volume increases both the likelihood of a "smoking gun" type of statement and evidence of mitigating facts to explain the context of a particular communication or statement. Even for a relatively small organization, the volume of messages sent electronically can be staggering. For example, a 1,000-person organization with each person sending eight messages per day results in 2 million electronic messages annually, not taking into account redundancies and send-on messages.

Second, electronic communications often have an informality and truthfulness about them thereby making particularly credible evidence at trial if properly authenticated and admitted. The credibility of this evidence is derived from the perception that the guard of the e-mail writer is down and that truth often emerges when a more informal and spontaneous communication is sent.

Third, the electronic communications are often accompanied by a company-sanctioned statement about the intended purpose of the communication and a "signature" tag that implies that the communication is being sent on behalf of the company. These communications can be viewed as representing an official position of the company although they may actually only represent a personal view or opinion.

Fourth, while there may be a perception that the electronic communication is transitory and can be easily deleted, this perception almost always is at odds with the reality. This "perception gap" is created by the existence of multiple copies of the electronic communication and the likelihood that it was sent on to multiple persons who themselves perhaps have multiplied the number of extant copies of the communication. This electronic proliferation creates numerous discovery opportunities for a single communication. In addition to the natural electronic proliferation of the electronic communication, the deletion of electronic data is often difficult to accomplish. Increasingly, technology is available to recover "deleted" documents in a manner that preserves the evidentiary integrity of the data. This reappearance propensity has been labeled "the vampire effect" of electronic data.

Finally, in many instances the company has no formalized system for organizing or retrieving electronic communications, nor does the company have policies and procedures regarding the retention of such electronic data.

So what is a company to do? Here are some sure fire issues to consider:
• The company should establish an e-mail, Internet-usage policy for its employees.
• The company should educate employees on the importance of appropriate communications via e-mail.
• The company should establish a document retention policy that addresses electronic data.

James Snyder is general counsel and the national director of BKD, LLP’s Forensics and Dispute Consulting Services group. He can be reached by phone at 816.701.0260 or by e-mail at jsnyder@bkd.com.