In the past, when a company was sued and received onerous discovery requests for “all documents,” they might simply open up their warehouse filled with boxes of documents and tell the opposing party that they have free reign to search for relevant documents. And as many in the legal world may recall, this could be successful in hiding documents. However, a recent post on www.appliedediscovery.com and others makes me think that companies can no longer hide smoking gun documents.
As Toyota, BP and countless other companies know, even if they don’t produce a document to a regulatory body or an opposing counsel, some whistle blowing employees will release the document anyway. For example, see here and here. Or, as the White House learned, a FOIA request can show some questionable activities.
Even without whistle blowers and FOIA requests, it is important to remember that when it comes to electronic documents, there is almost always going to be a copy outside of your control. For example: Emails that make it outside of the organizations servers can be very difficult and sometimes impossible to find; and backups allow records to be restored even if the data was purposefully deleted from the active platform. In addition, most of the onerous spoliation sanctions come from the evidence left behind when a party tries (or succeeds) in destroying data. For example, see TR Investors, LLC v. Genger (an owner of the TRI business was fined $750,000 as a result of ordering his IT consultant to clean out his hard drive which resulted in the inability to produce ten relevant documents in court).
The best way to deal with the potential of smoking gun emails is to establish appropriate retention policies and consistently delete documents. The risks involved with attempting to hide an email or electronic file are far greater than any potential reward.