Evolving Guidelines, Risks: Electronic Storage of Reporters' Notes

By Smallman, David B. | Investigative Reporters and Editors, Inc. The IRE Journal, May/June 2004 | Go to article overview

Evolving Guidelines, Risks: Electronic Storage of Reporters' Notes


Smallman, David B., Investigative Reporters and Editors, Inc. The IRE Journal


LEGAL CORNER

Whether reporters should retain notes, outtakes, and other unpublished material has long generated debate about the respective benefits and disadvantages of doing so if stories are challenged or litigation arises. While such data can show meticulous newsgathering techniques, corroborate accurate reporting, and memorialize crucial evidence, the same information can sink a case (or a career), revealing sloppy practices, fabrication, preconceived outcomes, or questionable tactics. Leaving aside aberrant instances of newsroom fraud and observation of basic rules that prevent its occurrence, journalists also should be aware of court decisions setting guidelines for retention of electronic records - both prior to and after litigation ensues - and the legal consequences of failing to preserve them.

A wealth of stored data

Reporters create information on a variety of electronic devices, such as PDAs, digital audio recorders and cameras, and computers. Other information, including hand-written notes, documents and photographs, are converted to digital form by scanning. Such electronic data is communicated via e-mail and related attachments. Large volumes of accumulated data can reside remotely on tape drives or mirrored on backup servers. all of this means that a huge reservoir of electronic data is generated by the newsgathering process in both obvious and subtle ways. Not surprisingly, litigants have become savvy about electronic document discovery and judges have defined the contours of what records must be preserved and when.

Knowledge of incidents' and 'threatened' suits

By the time a lawsuit is actually filed, the duty to maintain evidence relevant to the case is well understood. Until recently, it has been less clear what obligations attach to retention of records substantially prior to any actual claims or the filing of a complaint, and certain factors unique to journalists may come into play. For example, subjects of investigative reports increasingly engage in proactive measures to head off or influence stories prior to publication. As a result, reporters, editors, producers and their media counsel may have or will acquire knowledge of stored data that could be construed to contain warnings of incipient claims. Media insurers commonly request information about incidents that may give rise to lawsuits, as well as lawsuits actually brought or merely "threatened."

Scope of duty to preserve stored data

In Zubulake v. UBS Warburg LLC, a federal district court in New York (in a nonmedia context) specified broad guidelines for preserving stored electronic data. The court stated that "the broad contours of the duty to preserve are relatively clear" - it "extends to information that is relevant to the claims or defenses of any party, or which is relevant to the subject matter involved in the action."

The court further held that "[a] party or anticipated party must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter." Importantly, the court goes on to state: "Once a party reasonably anticipates litigation, it must suspend its routine document retention/ destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents." Though the court excluded, as a general matter, "inaccessible backup tapes" used for disaster recovery, it did not exclude such tapes if information about 'key players' was known to exist on such tapes and the information was not otherwise available. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Evolving Guidelines, Risks: Electronic Storage of Reporters' Notes
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.