Litigation

Despite Document Retention Policy Allowing Individual Determination for Need to Preserve, Court Orders Board to Bear Recovery Cost of Deleted Emails in Response To Records Request

By reston, Gates and Ellis

State ex rel. Toledo Blade Co. v. Seneca County Bd. Of Comm’rs, 2008 WL 5157733 (Ohio Dec. 9, 2008)

This case arose from plaintiff’s request to review “all outgoing and incoming emails” of several Seneca County Commissioners following the board’s approval of plan that called for the demolition of the courthouse.  Plaintiff alleged that the county’s production was deficient and cited a lack of emails from a particular time frame as well as alleged admissions by particular commissioners that they had deleted relevant messages.

Following these allegations, the board discovered additional emails for production and subsequently undertook a search in “every single folder in the hard drives of the computers of every person from whom emails were requested” and produced all responsive documents. The board did not undertake efforts to recover deleted messages, however, arguing that “while it may be possible to retrieve additional information from a hard drive with very expensive forensic tools, that information would be considered deleted by the user and would not be available to the user.” At all relevant times, the board maintained a schedule for records retention that allowed for the deletion of email deemed to have “no significant value.” The determination of “value” was left to each individual “computer user” pursuant to that policy.

Plaintiff moved for an order compelling the board to undertake efforts to recover the deleted information.  The court, articulating several “appropriate factors” for determining when a public officer has a statutory obligation to recover the content of deleted emails, found in favor of the plaintiff.  Among the factors articulated were considerations of whether the emails had actually been destroyed through deletion, whether the emails were destroyed in violation of the document retention policy, and whether recovery of the emails would be successful.

The court also ordered the board to bear the cost of recovery, despite acknowledgement that such costs are sometimes shifted to the requesting party, citing several factors including the board’s failure to maintain the emails in accordance with the applicable policy.  Despite the policy’s allowance for individual assessment of the need for retention of emails, the court found that it “defied logic” that all email during the relevant time lacked sufficient value to be retained.

In so ordering, the court nevertheless acknowledged that “the board’s efforts need only be reasonable, not Herculean, consistent with the public office’s general duties under the Public Records Act.”

A copy of the full decision is available here.

Full post as published by eDiscovery Law on January 09, 2009 (boomark / email).