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E-Mail Retention and the White House
A recent Federal District Court Order (District of Columbia) recognizes that issues regarding technology and electronically stored information (ESI) are politically charged. The Order, No. 1:07-cv-01707-HHK (D.D.C. Nov. 12, 2007), authored by Judge Henry H. Kennedy stems from a complaint filed on September 25, 2007 by the Citizens for Responsibility and Ethics in Washington (CREW). The Complaint alleges the Executive Office of the President and the National Archive and Records Administration knowingly failed to recover, restore and preserve millions of e-mails and the White House failed to implement an adequate electronic record retention system. |
The Complaint further alleges that if any of the deleted e-mails still exist, they would only exist on backup tapes. CREW sought a temporary restraining order to require the preservation and restoration of the missing e-mails and the implementation of an adequate records management system.
Back in 1994, the Clinton administration established a records management system that preserved and categorized e-mails but that system was discontinued and not replaced in 2002. The missing e-mails in question were deleted between 2003 and 2005. Their existence was first exposed during the CIA leak investigation and received further attention during the congressional inquiries into the firings of several US attorneys.
Magistrate Judge Facciola, who is widely recognized as an expert in the area of electronic discovery, recommended that Judge Kennedy grant the Order because of public interest and the potential that important historical information might be contained on the backup tapes. Although the Justice Department attempted to claim they are not subject to the law of the judiciary, the argument failed. The White House was ordered to preserve the media and prohibited from transferring it out of their custody and control without the permission of the Court.
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