Destroy or Divulge?

Although we do not spend all our time worrying about litigation and issues facing lawyers on electronic evidence and evidentiary findings, we know from our experience that what is or is not in a file can be equally damning. A number of articles from LTN (Law Technology News – June 2006) point to rethinking just how much material we want to keep—and how we are going to keep it.

Apparently, in future litigation it seems that a defendant’s team will be able to ask for documents/digital information in whatever electronic form is most useful to them. From an LTN column on page 44 of the June issue titled: Ball in Your Court: “The federal rules amendments governing discovery of electronically stored information have sailed through the US Supreme Court and are now before Congress. Assuming passage, they’ll be effective this December… Rule 34B “Have it your way” –empowers a requesting party to specify the form or forms in which electronically stored information (ESI) is to be produced…” There are already major players in the conversion and search software industries preparing for this eventuality.

Research and investigation tools for searching voice data have improved by leaps and bounds as well. Apparently, voice information –all those stored voicemails, dictations, etc. on your company’s hard drives, movable media, portable or fixed recording devices with any vocalizations at all, can become a wealth of research information. According to one manufacturer, Nexidia, their new product called Forensic Search, can analyze these data sources 63 times faster than the spoken word. Alas, they search phoneme patterns rather than whole word matching. Could be an investigator’s delight or your client’s nightmare!

When it comes to evidence from a completed investigation, there are more than one set of questions to answer. If you are the contractor doing an investigation for a client –what is in your best interest concerning evidence and original materials? It may not be the same as the best interests of your client.

One investigation company kept an “evidence room” where all the current and pending hard/soft goods resided until a particular investigation was completed for clients. However, some materials were still in there decades later. Again, from a June 2006 LTN in an article by John Bringardner, quoting Kurt Stevenson, director of records and information management at Thacher, Proffitt & Wood: “We now have the technical capabilities to retain everything indefinitely… But if a former client is involved in litigation 10 years from now, the discover trail could lead right back to your archives…” The suggestion was that each company needs a records [and in this case evidence] policy that specifies who gets the records and original investigative materials at the conclusion of the case. The message seemed to be: Clear the deck; clear the liability.

There were strong suggestions that each organization have a policy written and in place about how long information gets retained, where, and how it gets destroyed, where, etc. And now is a good time to insist it happens. Even if you cannot make decisions organization-wide, write out the policy for the security department. Then seek to get it approved and recorded so that at least you know and control what’s in the back of the file cabinet (and when it’s got to be eliminated.)

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