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By Paul H. Merry
One thing on which even lawyers must agree is that more and better evidence makes better justice. And we live in an age when technology has greatly improved both the quality and availability of many kinds of evidence, in both civil and criminal cases. Just as DNA technology represents a quantum leap forward in accurately separating innocent from guilty criminal suspects, computerized communications offer unprecedented opportunities to develop evidence in civil cases. But steps must be taken to assure the continuing availability of this new reservoir of evidentiary material if our legal and other dispute resolution processes are to realize the maximum benefits they offer.
The blossoming of electronic mail and computerized “word processing” over recent decades has produced a previously unimaginable amount of recording and documentation of both in-house and external communications. This documentation often provides extensive and intimate evidence concerning matters in dispute. In particular, many users of electronic mail regard it as a private communication mode more akin to telephone conversation than to formal interoffice memoranda. To foster closer relationships with workers, managers sometimes strive for a more casual, direct approach in e-mail than in more formal communications. As a result, electronic mail messages are often refreshingly candid and revelatory. These and the other numerous and illuminating records that business computers usually contain can be invaluable in determining or clarifying the intent of parties in contract formation, in intellectual property disputes and in countless other areas, including intentional torts and statutory discrimination claims.
Not only does the dawn of the computer age mean that in-house communications are set down with unprecedented frequency, but the quantity of such communications that can be accessed has been multiplied many times due to the vastness of computer memories and the capabilities of data search devices. Correspondence, witness statements, internal memoranda and other significant documents are now preserved in greater profusion than ever before. More significantly, computer memories often contain the various drafts and revisions of such documents, disclosing the drafters,’ editors’ and signatories’ thought processes. And unlike the past, when the difficulty of reviewing great quantities of material necessarily deterred many lawyers from even attempting to access it, computers now also make document searching and organizing stunningly faster and more efficient, permitting clearer, more thorough factual presentations at lower cost. Relevant materials can usually be sorted out from reams of related but unhelpful documents in mere seconds, by listing operative words and entering them in a search program.
Despite the obvious benefits it offers, though, the unique fragility and perishability of this rich reservoir of enlightening material raises serious concerns about its long-term availability. The same technology that makes the materials so readily available also facilitates their destruction at near the speed of light. Reams of electronic documents can be “deleted” accidentally or intentionally with a single keystroke. The dreaded “hard disc crash” has taught computer users the vulnerability of materials not adequately preserved on “backup” devices. But even records on backup media can be destroyed instantly by accidental contact with magnets, by intentional erasure or simply by being overwritten. And although “deleted” items can sometimes be restored from a machine’s storage media, the cost of such “data recovery” can be prohibitive; and once overwritten or erased, this material is gone with an irreplaceability only fire could produce for paper — as most computer users have learned to their chagrin at one time or another.
And in addition to the obvious temptation such ease of destruction of damning material presents, other forces also militate for the elimination of electronic evidence. Despite the minimal cost, some corporate counsel object to maintaining it on grounds of expense. Confusion is also growing over the obligations of parties to preserve the extensive amounts of potentially useful material they may hold. Many companies’ practice requires backup tapes to be reused every few days or weeks, meaning that their contents are irretrievably lost. Thus even well intentioned record keepers may, in the absence of clear guidance, proceed in ways destined to doom important evidence to destruction even before protective orders can be requested.
All this means that special measures, including court rules changes, must be taken to establish beyond question that electronic records must be safeguarded and to clarify the obligations of electronic record keepers. Provisions specifying that electronic records must be preserved for particular time periods, perhaps keyed to statutes of limitations, would be of great assistance to parties wishing to comply with the law but restive about the cost and uncertainty of their obligations.
Such provisions will lighten the court’s load as well. In some cities, litigators are being advised to routinely include motions for protective orders requiring preservation of electronic evidence along with each complaint served. This trend, which appears likely to grow, means that without clear rules provisions more and more court time will be consumed by such motions, which are costly for parties as well, particularly individual litigants.
The new technology clearly represents an area where lawyers as advocates can seek relative advantage. But we would do better to see electronic evidence for the boon it represents, and do all we can to support the judiciary in making rules changes necessary to maximize the availability of this precious judicial resource and the improved quality of justice it makes possible. Once steps have been taken to require adequate preservation, the courts would be assured of the availability of the best materials on which to base the best-informed, fairest and most just decisions possible.