Bungled Electronic Evidence

Los Angeles County prosecutors were berated by a judge earlier this month, and were forced to watch key defendants in a public corruption case stroll into the sunset with a slap on the wrist, after they bungled electronic evidence management. The office now has a black eye arising from mishandling email.

The Los Angeles Times reported Judge Kathleen Kennedy’s remarks as she scolded the team.

“You guys are just tripping over your feet and falling on your faces,” Kennedy said, according to the Times. Her remarks included a recommendation that the office should go to the U.S. Attorney for help with “managing complex ‘paperwork’ cases.”

Habeas Hard Drive does not know Judge Kennedy’s thought process, but her reference to “paperwork” is interesting. (The LA Times also put quotation marks around it.) We wonder if the LA prosecutors, and perhaps Judge Kennedy, too, are looking at electronic evidence through a paper evidence lens.

Let’s start with the deputy district attorney who was removed from the case more than a year ago. Dana Aratani’s own account of sorting through a half-million emails is revealing. Aratani “developed his own system of ‘randomly viewing files,’” for criminal activity, reports the Times.

In the process, he read messages sent by one of the defendants to his attorney.

This suggests Mr. Aratani was treating ESI – electronically stored information — as if it were paper. It’s little consolation, but he’s not alone. Lawyers and judges across the nation are still discovering the extremely consequential differences between paper evidence and electronic evidence.

When you’re confronted with an overwhelming body of electronic evidence (which is most often, but not always email), there’s a critically important procedure for preserving, narrowing the scope, and reviewing the evidence in accord with the rules of discovery.

Digital evidence, especially email, has a tendency to multiply. They pile up replies and forwards, and the thread gets longer because people don’t delete the original messages. Often, there are unrelated topics discussed in the same message, because it’s marginally easier to hit “reply” than to start a new communication. Reading these documents with their stacked content presents a greater risk of encountering something that shouldn’t be revealed.

(Conversely, digital evidence also disappears, as some systems are scheduled to automatically overwrite data, and some data gets altered each time devices are used. Records also get destroyed or lost as people replace their laptops and phones. This is an important reason to gather ESI as soon as a case is underway.)

This is just one of the differences between digital and paper evidence. Failure to recognize the distinctions is prompting sanctions in civil cases, and in criminal cases, justice is being subverted, as the Los Angeles case demonstrates.

Before you offer your electronic evidence for discovery, you may want to appoint a dedicated reviewer in your office to classify email messages according to their level of sensitivity, and flag anything that should remain confidential.