The legal press buzzes with news about a discrimination law suit between an associate and his BigLaw employer. A development today – destruction of a hard disk drive – offers lessons on both e-discovery and records management.
Destroyed Hard Drive Becomes Focus of Hearing in Sullivan & Cromwell Suit (NLJ, 2/9/06) reports ex-associate Aaron B. Charney, who is suing Sullivan & Cromwell for sexual orientation discrimination, “recently destroyed a personal hard drive to which he had e-mailed firm documents.” Those documents are a factor both in Mr. Charney’s suit and in S&C’s counter suit for “stealing documents and publicly disclosing confidential information.”
Lesson one: if litigation has commenced or is reasonably anticipated, destroying relevant evidence may be spoliation. The reported facts don’t sound favorable for Mr. Charney.
Lesson two is less obvious. To work outside the office, many lawyers e-mail documents to themselves or copy documents to portable storage media. A records management policy should address this fact. An RM policy here would not change the legal issues. The facts, however, remind CIOs and records managers to deal with document copies outside the walls and firewalls of the office. Absent a digital rights management system or draconian limitations, controlling such copying is virtually impossible. A well-crafted RM policy can at least put lawyers on notice concerning how the firm expects them to manage such copies.