Spoliation

January 16th, 2008at 10:21pm Posted by Eli

By now, I assume you’ve all heard that the Bush administration has grudgingly admitted, one minute before the due date on a court order, that they were recycling (also known as deleting and overwriting) their e-mail backup tapes until October 2003. This is in clear violation of federal document retention law, but that’s okay, because they were following industry best practices:

Prior to October 2003 and continuing through 2005 and to the present, this office has regularly created back-up tapes for the EOP Network, which includes the system’s email servers. Consistent with industry best practices relating to tape media management for disaster recovery back-up systems, these tapes were recycled prior to October 2003. In October 2003, this office began preserving and storing all back-up tapes and continues to do so.

Awesome. I’m sure that explanation would totally hold up in court… if anyone ever bothered to take them there.

But here’s the really interesting thing, from lhp in the comments of that post (emphasis added):

The law is : A doctrine called “spoliation” which says that if you destroy evidence that you had an obligation to preserve, if you knew or reasonably should have known that the evidence in question related to a possible claim against you, then your opponent is entitle to a “negative inference” against you.

More simply, with less jargon. The court will instruct the jury that your opponenet is entitled to an inference that the destroyed evidence would either support their case or damage the theory of your case.

This was the problem when Arthur ANderson had it’s shredding party after the Enron collapse. It didn’t matter whether or not they had a regular practice of shredding stuff once it got old. Once htey Knew or should have known that any of that paper might have been relevant to the Enron investigation, they had an obligation to preserve it.

So if someone takes the Bushies to court and demands to see e-mails from the March 2003 (when the WH started deleting e-mails) to October 2003 timeframe, then they have screwed themselves. Ironically, they could conceivably even get convicted for something they were actually innocent of (if such a thing exists), because they wouldn’t be able to produce e-mails to prove otherwise.

Of course, in the real world, no-one actually has the balls to take the Bushies to court, and even if they did, the administration would argue (as they have all along) that the nonexistent e-mails are covered by the magic cloak of Executive Privilege, so they have no obligation to produce them anyway.

Two other caveats:

1) Payton claims, seemingly nonsensically, that “emails sent or received in the 2003-2005 time period should be contained on existing back-up tapes.” If – I repeat, if – the data files being backed up extended beyond 7 months, and the backups were full rather than incremental, then the first non-“recycled” backup tape from October 2003 should contain all of the e-mails from March onward. Or, alternatively:

2) Several commenters in that same thread make a distinction between backups for purposes of disaster recovery, where the emphasis is on restoring the work environment, vs. backups for purposes of archival storage. However, it seems odd that the WH would not make such a distinction to explain their claim that all the 2003 e-mails were still intact.

It’s a bit reminiscent of Saddam’s WMD dance, where he wanted to simultaneously claim that he didn’t have any so that the US wouldn’t invade, yet also suggest that maybe he did, so that he could still pretend to be a scary badass. I’m thinking that the administration doesn’t want to come out and admit that they’ve broken the law, yet at the same time doesn’t want to suggest that those e-mails are available either. It’s a very strange two-step, and I sure hope someone calls them on it some day.

Entry Filed under: Bush,Corruption/Cronyism,Libby/Plame,Republicans,Technology


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