Anticipating Human Frailty

For some time, I've preached that lawyers implementing a litigation hold must anticipate and guard against human frailty, specifically a custodian's inclination to reinvent history by altering or deleting ESI.  With disturbing regularity, custodians hit the delete key, deploy wiping software, swap hard drives or otherwise seek to "game" the evidence. 

As a forensic examiner, I'm brought in when data destruction is suspected, and those suspicions frequently prove well founded.  So, yes, I concede my views are jaded and skewed...by firsthand experience.

Too often, the corporate response to data wiping ranges from turning a blind eye to it or, when it can't be ignored, distancing the occurrence as the aberrant behavior of a "rogue" employee whose conduct the company claims it couldn't anticipate or control and thus need not shoulder.  But a recent decision, strikes a dagger in the heart of the "no duty" argument, holding that, even absent evidence that others in the company knew of or condoned the destruction of ESI, the company should have taken reasonable steps to prevent or mitigate the consequences of such misconduct.  In re Hawaiian Airlines, 2007 Bankr. LEXIS 3679 (Bankr. D. Hawaii Oct. 31, 2007).

The Hawaiian Airlines case involved the efforts of one G. P. Murnane III, Exec. VP and CFO of Mesa Air Group, Inc., to scrub-a-dub-dub two company laptops and tinker with system clocks in a ill-starred effort to make his ablutions appear to precede litigation.  Throw a couple of allegedlys in that last sentence for me, won't you?

Read the opinion and pay careful attention to the court's language:

"Even though Mr. Murnane was a valued, trusted, high level employee of the company, Mesa could and should have taken reasonable steps to prevent all of its employees from doing wrongful and foolish things, like destroying evidence, under the pressure of litigation.  Because Mesa failed to take such steps, Mesa facilitated Mr. Murnane's  misconduct."

Got that?  The company facilitated data wiping by failing to prevent it.  Consequently, the company was sanctioned with an adverse inference instruction.

One of the reasonable steps identified by the court was copying the laptop hard drives early in the litigation.  "Doing so," opined the court, "would not have been costly, burdensome, or unduly disruptive of Mesa's business."

Except, of course, applying that standard to all employees is costly, burdensome and unduly disruptive of any mid-to-large company's business.  Take it from me, I've been there.

But, just because it's tough duty applied to all employees doesn't mean it isn't a gold standard when applied, e.g., to key custodians and C-level employees like Mr. Murnane.  That's where we lawyers come in: It's our job to gauge the extent of the risk, then manage it prophylactically.  Or, to quote Finley Peter Dunne, we should "Trust everybody, but cut the cards."  Quickly and quietly making copies of key drives is part of a good plan, but we need to dig deeper to root out the behavior and institutionalize practices to prevent data destruction.

Part of the problem stems from the "my data" mindset.  Employees develop a proprietary attitude respecting the data stored on "their" company computers and "their" network space.  People who wouldn't dream of shredding paper evidence little hesitate to hit the delete key in an effort to wipe away reams of electronic counterparts.  Compounding the problem is the presence of compromising personal or sexual content on company machines.  I'm uncertain how corporate America fills its days now that China has lifted the burden of industry from our shoulders, but apparently it involves a whole lot of porn.

Another enabler is custodians' belief that they can get away with it.  Vendors of wiping software tout their products as reliable insurers of data privacy, pointing to their DOD-approved wipe routines and adopting names like "Evidence Eliminator" (which is indeed catchier than "Sanctioned for Sure").   Even when data wiping programs work, their use isn't hard to spot.  I've never seen deleted evidence more damaging than the gaping hole left behind in its place--a void judges and juries fill with the worst things they can imagine.

So, lawyers have a new challenge and potential conflict to resolve.  We are bound to anticipate human frailty in our clients and act to protect them from themselves.  We can't just say, "Don't delete stuff" and trust in our clients and their employees to do the right thing.  We must assume the worst where it makes sense to do so or where the risk of doing otherwise is too great.  This bodes poorly for the reasonableness of custodian directed preservation of ESI--a questionable practice, at best--but I'll leave that rich topic for another post or column. 

Happy Thanksgiving!

Thanks to the ever astute Sharon Nelson of the Ride the Lightning blog for highlighting this case from Larry Wescott's Electronic Discovery blog.