May 24, 2002
Another reason to need time travel

Max Power writes about a case in Australia where a tobacco company was held liable to a plaintiff because "the company had destroyed decades-old documents". Says Max:

Document destruction when there's an outstanding subpoena calling for the documents is one thing, and clearly illegal; document destruction when there's outstanding litigation that will likely call for the documents is another, though generally agreed to be illegal when done with nefarious intent, and at issue in the Andersen case now. But here the court held that British American Tobacco's destruction of documents with no litigation pending was illegal and sanctionable, because it was done in anticipation of future litigation against unknown parties that had yet to be filed!

The problem here is that this proves too much. All document destruction policies are in place, in part, to limit the expense of future litigation. If your company saves forty-year old documents, someday someone will sue you and want to look through those forty-year-old documents for evidence, and you'll need to hire lawyers and paralegals and copying services to manage all that potential evidence at a cost that, if I had to guess, works out to about a buck a page. Most companies automatically delete e-mails for just such a reason. (I'm a litigator in my day job. I've sat in a warehouse and looked at forty-year old documents. I've also spent days of my life leafing through executives' ancient personal e-mails because they were stored with their business e-mails.)

Meanwhile, BAT's "discovery abuse" was sanctioned by prohibiting them from introducing contrary evidence in defense of their case, and they naturally lost the one-sided trial, as the plaintiff pointed to the evidence destruction as the evidence of wrongdoing.

I've been called on to help our legal department in a couple of litigations where they were required to turn over large volumes of email as part of discovery. One case required us to restore the mailboxes of five executives from each backup tape over a period of several months. Once that was done, I was called in to search through each days' restored mailboxes for various keywords.

At the time, my company did not have a backup tape retention policy for email. We do now - each tape is kept for 30 days, then recycled. This is one reason why. You may think this is weaselly of us, but for an enterprise as large as ours, even if we never had to worry about getting sued, the sheer volume of tapes make storage an expensive nightmare. We already have a large building whose sole purpose is storing backup tapes. We have another vast room in our operations area that stores backup tapes for mainframe systems. It's on a smaller scale than the giant warehouse at the end of Raiders of the Lost Ark, but you get the same overwhelmed feeling when you walk in and see all of the old tapes.

More recently, I was asked to help one of our lawyers determine what backup tapes we had for various individuals from the 1996-1997 time frame. None of these people were on Exchange (our current mail platform) as yet, so I spent a few hours verifying that we hadn't bothered to keep any PROFS or GroupWise backup tapes. And why should we? We're talking backup tapes for email platforms that we no longer use, which in the case of PROFS lived on an operating system (VM) that we no longer use. What possible use could we have for them?

This is an incredibly stupid decision by the Australian court, and I sincerely hope it is not used successfully in America.

Posted by Charles Kuffner on May 24, 2002 to Technology, science, and math