What The Hillary Clinton E-mail Scandal Means For Lawyers
Legal technology columnist Jeff Bennion takes the controversy over Hillary Clinton's emails and uses it to examine important issues in e-discovery.
The federal government and Hillary Clinton are now dealing with standard e-discovery questions that litigators face every day. For those who have not been following the saga, here is a pretty decent timeline by the New York Times. In a nutshell, earlier this month, the State Department acknowledged that Hillary Clinton was using her personal e-mail address to conduct official state business while acting as the Secretary of State. The State Department was concerned for several reasons: 1) the use of personal e-mail vs. official state e-mail with detailed data security protocols raises security concerns, 2) the State Department was not in possession of key official documents dealing with foreign relations, and 3) the law requires that such information be kept under the Federal Records Act.
In 2012, Congress demanded that the State Department turn over all of Hillary Clinton’s e-mails regarding the attacks in Benghazi. The State Department turned over thousands of documents but none of Hillary Clinton’s e-mails until last month, when the State Department found out that those e-mails were kept on a private off-site server with a private account. The State Department turned over another 300 e-mails that Clinton had on her private servers that were responsive to Congress’s demands regarding Benghazi. In total, Clinton produced about 55,000 pages of e-mails that she claims were official business.
In response to a subpoena with an April 3, 2015 deadline, Clinton’s lawyer sent a letter to the House Benghazi Select Committee saying that all of the e-mails on her server had been destroyed and there is nothing more to produce.
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The above fact pattern raises several issues that litigators deal with in e-discovery cases every day. But, even if you are not a litigator, you should be concerned about these issues. If you have clients who have data and who might one day be sued, you should be concerned about these issues. If you have e-mail accounts that you use for personal and work-related issues, you should be concerned. Because everyone stores data and because the ratio of people and businesses who store data to the number of data retention policies that are in place and followed is very small, there is enough cause for concern for everybody.
Here are some of the concerns that we as lawyers should be aware of with our clients:
Neutral Review – Who is in charge of pulling data off of our client’s or opposing party’s electronic source? In Clinton’s case, her own people pulled the data off the server and then wiped the server, destroying any evidence other than what she chose to produce in response to the subpoena. In civil litigation, are you allowed or required to entrust the forensic gathering of data to a third party?
Where Is Your Data? – Knowing where your data is stored is one of the first things you should be looking at. Clinton sent 55,000 pages of e-mails and the State Department said that until recently, they had no idea she was using a personal e-mail address instead of her official one. Was no one else cc’ed on any e-mails that she ever sent? No secretaries, aides, or staff members who could have noticed that she was sending e-mails from another source? Were any of those e-mails reviewed by anyone who had requested the State Department’s e-mails? If you are doing a preliminary review of e-mails from your client in anticipation of a production and you notice that the boss is sending e-mails from his work account and his aol.com account, you should be on notice that there are other sources of data that you need to be looking at or you might be sanctioned. Just ask Qualcomm.
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How Secure is your Data on your phone? Server? Computer? Laptop? You need to secure data in every location that it could reside. If you password protect your desktop computer but can access e-mails from your phone, which has swipe to unlock enabled, your data is not secured.
Where are the servers? Are they remote servers or on premises? Are backups made, and if so, how often?
Can Data Be Deleted? Say Clinton (or your client) is forced to turn over the physical server to the requesting party after the data has been deleted. Can the data be restored? Is it deleted? When you delete a file and empty the recycle bin, is that data deleted or reapportioned as data that can be overwritten if the hard drive needs the space? Do you know the difference? Because there is no difference unless, of course, you actually get rid of that data by filling your hard drive over and over with filler data to overwrite the “deleted” files’ space on the hard drive.
Does your company have a data policy? The State Department didn’t. They left it up to the employee to determine whether an e-mail was work-related or personal and whether it could be deleted or had to be retained. Clinton was not the only one who had data possibly lost because of the lack of a solid policy.
Earlier: alt.legal: Could Hillary Clinton Go To Jail?
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Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. Although he serves on the Executive Committee for the State Bar of California’s Law Practice Management and Technology section, the thoughts and opinions in this column are his own and are not made on behalf of the State Bar of California. Follow him on Twitter here or on Facebook here, or contact him by e-mail at jeff@trial.technology.
