Recovering Deleted Emails and Drawing Adverse Inferences

As many know, deleted emails are usually never actually deleted. There are thousand of forensic computer consultants who make a living "finding" deleted emails. It is expensive, but they are very effective at finding emails. This is usually because companies back up emails for a period of time on tape. The tapes are reused, and the new data saved over the old data. Consultants can usually find the old emails on the tape, if it is has not been used too many times. Also, people keep emails in the sent mail or other folder on their PC - so they are found there, even though other versions might be deleted.

Many legal cases have turned on these recovered emails - some of them very high profile.

There are also rules that require a party to preserve emails in the context of litigation - and to stop any regularly scheduled back up (writing over) of tapes. I believe some of Congress' letters cautioned the WH to preserve emails - not sure how far and how soon the letters and caution went to the NRC and others.

In addition, if it is found that a party did a massive "dump" of tapes and emails suddenly, and not in accordance with established policy by that company, a court would typically give the jury an adverse inference instruction which says something like - you can assume that the evidence was destroyed because it was bad for the party that destroyed it.

It will be very interesting to see how these principles - developed in the law regarding electronic evidence over the last 10 or so years - will be applied in this situation.

I'd like to say ditto but that fat bastard stole the word from us. So please accept this placeholder until I find a suitable substitute. Hell, yeah, this is going to get interesting.

destroying the emails may end up bringing more legal jeopardy than whatever it was they were trying to hide.

It could have been easily laid out to insure non-recovery. I've discussed how to do that in multiple other threads. Its also quite legal, assuming that Sarbanes-Oxley is not applicable.

While the formal adverse inference instruction is only applicable in the case of non-scheduled destruction, a jury could easily see intent is a system not designed to save records and automatically insure that forensic reconstruction is impossible.

backup what ever you want. Will you break some law? Maybe or maybe not. RNC is a private corporation, not part of the government.