Purposeful Email Deletion Results In Sanctions and Scolding

Posted by Gregg Mayer on Friday, April 11th, 2008   

When email is subpoenaed under the Federal Rules of Civil Procedure, the last thing an individual should do is delete the email and hope the whole mess goes away.

Nevertheless, that’s apparently what a former Texas district attorney did when he was subpoenaed for email from his office. As a result, the court on March 28 held the former DA in contempt, fining him and calling all of his excuses “implausible.”

The case, In re Rosenthal, stems from a civil rights lawsuit in Texas. As part of the case, the plaintiffs sought email communications from Harris County District Attorney Charles Rosenthal to the Harris County Sheriff, among other officials.

At first, the county officials said they “fully complied” with the email request, noting of the 12,785 email messages retrieved during a search, only 61 were relevant to the case.

After more wrangling over what should be disclosed, the plaintiffs argued that not only did the county delay in producing email, but that Rosenthal purposely deleted 2,500 email messages that could no longer be recovered. Astonishingly, Rosenthal acknowledged he did delete the email after he was on notice to preserve the messages:

The respondents admit that Rosenthal deleted e-mails that were the subject of the October 31 subpoena. However, they argue that he did not delete or attempt to delete all e-mails responsive to that subpoena. Rosenthal also asserts that he did not act in concert with the other respondents or seek help from anyone in deleting his e-mails. He contends that at the time that he deleted his e-mails, he believed them to be available for an indefinite period of time on back-up tapes maintained by Harris County Information Systems personnel. Further, Rosenthal contends that he committed error by deleting the e-mails only because he assumed that his counsel…had also printed a hard copy of each email.

The court almost seemed baffled by the blatant disregard of court rules.

At the outset, it is important to note that Rosenthal was familiar with the rules governing the discovery process…Indeed, during the relevant period, he was the District Attorney of Harris County, Texas with more than 40 years of legal experience.

Rosenthal offered a host of hollow excuses: (1) thought there were existing hard copies, (2) thought they were permanently stored in the network’s back-up tapes, (3) wanted to reduce the “large volume of email visible” on his desktop, (4) wanted to be more efficient at work, and (5) wanted to free up memory space.

The court responded:

There is no evidence that Rosenthal’s computer memory space was threatened by additional e-mails or that, in fact, it was short of space. Hence, these reasons – all implausible inconsistencies – defy the law of common sense…This conduct reveals a man confident in his status, entrenched in his brand of law. He would not or could not acknowledge an authority beyond himself. And, like the County Attorneys who appeared earlier in this case, Rosenthal reposes in the idolatry of their own perverted wisdom.

Ultimately, the court held Rosenthal in contempt and monetarily sanctioned him. The court also sanctioned Rosenthal’s attorney representing him in the lawsuit, describing the attorney’s conduct “unprincipled and dilatory, at best, constituting a deliberate indifference” to the court’s orders.

Time and again on CIOLaw.org, we’ve highlighted the dumb ways individuals try to outsmart the court system by deleting – or similarly throwing away – ESI. It never works.

CIOs should ensure they have an archiving system that reliably and effectively stores email and other ESI. Moreover, the system has to preclude rogue activity by end-users who may think it is better to delete email messages that they should preserve. It always backfires, even against former district attorneys.

Read another short post about this case and the court order itself at the terrific “ride the lightning” blog.

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