They're hiding in hard drives and lurking in archival tapes by
billions -- a universe of e-mail, draft documents and phone-mail
messages. Deleted or not, chances are good that if it ever was
saved, it still exists in retrievable form, waiting for discovery by
lawyers seeking anything they can use to support their clients'
claims and defenses or to discredit adversaries' witnesses.
The fact that "deleted" documents are often preserved in computer
hard drives and on back-up tapes came to public attention a decade
ago during the Iran-Contra scandal when investigators recovered
deleted communications among President Reagan's former national
security advisers Robert McFarlane and John Poindexter and their
subordinate, Oliver North.
But many companies have failed to integrate this knowledge into
their document management policies. The result, according to lawyers
and others who work on commercial cases, is that electronic
in legal cases has become a mini-industry, with the discovery
itself having increasing impact on the outcome of litigation.
Among the cases that lawyers and others cite as examples -- with a
minimum of identifying details, because of confidentiality pledges -
are the following:
* A top executive defects from a company and a stream of key
employees follow her to a rival concern. The jilted company sues,
charging she violated her fiduciary duty, according to the
plaintiff's lawyer, Michael A. Stiegel, managing partner of Arnstein
& Lehr in Chicago. She denies soliciting co-workers during her
tenure. But from the depths of her former hard drive, company
systems experts, at no extra cost to the plaintiff company, retrieve
the e- mail she meticulously deleted -- the "smoking guns" she sent
to the employees who later joined her, Stiegel says. Result: a
settlement last year strongly in the plaintiff company's favor.
* A defendant in a continuing lawsuit, a manufacturer, archives
thousands of gigabytes of back-up tapes over the course of more than
10 years. "They literally saved every back-up tape they ever made,"
said John Jessen, president and chief executive officer of
Evidence Discovery Inc., a Seattle-based company that provides
computer support to parties in litigations, including this
Over the objection of the manufacturer's lawyers, a judge orders the
company to review its warehoused tapes and to produce relevant
information for the plaintiff. Cost to defendant: more than $3
million, Jessen estimates.
* In a third commercial case, a court orders a defendant company
to give the plaintiff company physical custody of its hard drives.
The plaintiff company hires a computer expert to pick through these
hard drives for anything that can prove the defendant company stole
proprietary information. The case came to an abrupt halt early this
year after copies of internal memorandums are presented as exhibits
in depositions of the defendant's principals. According to Mike
Abernathy, partner at Bell, Boyd & Lloyd in Chicago, "We basically
broke from the deposition" and began settlement talks.
These are not isolated occurrences, according to lawyers and
experts in document retrieval. Commercial litigators have caught on
to two computer-related facts with a vengeance.
First, the delete function on a computer, whether mainframe,
network computer or laptop, does not usually destroy documents. It
moves them to undisclosed locations on a hard drive.
Second, many companies periodically download and store all of the
information on their systems, including deleted e-mail and document
And with a trend toward integrating phone mail into companies'
computer systems, phone-mail messages are increasingly being
downloaded and stored, also in retrievable form. Recovered
phone-mail messages are just beginning to become a factor in
commercial cases, Abernathy said.
E-mail messages can be particularly damaging, providing lawyers
with disarming, personal and even embarrassing evidence. …