1. I guess the judge has never had a computer crash. Probably doesn’t even use email. He’s acting like there were boxes of printed emails somewhere , that somebody shredded. Never happened. They were just millions of bits of 0’s and 1’s on a hard drive. When (not “if”) the drive crashes, they can be unrecoverable. If you never made backup copies, they are just gone.

    The real question is why those emails were not all backed up on her email server? A laptop is a pretty ephemeral device to keep permanent records on. The people running the server can decide to back everything up, and keep those backups for as long as they want. The judge should be talking to them, not some end-user.

  2. This seems like such a witch hunt because the courts don’t have a clue on the technology.

    I’ve helped corporations put together collections of pertinent e-mails for lawsuits. Typically, what happens is we’d define the dates to be examined, based upon the lawsuit’s parameters, and then notify everyone who might have even peripherally been involved to stop deleting e-mails. The systems guys would set up separate servers for those folks and never delete anything – basically exempting those servers from standard company retention protocols. This didn’t happen until a lawsuit’s discovery process was initiated.

    We’d also identify long-term backups to be retrieved from off-site storage and restored to special servers.

    fwiw: the company had a policy that quarterly backups were to be stored for a defined period of time off-site. Since magnetic tapes had a limited life, this was typically for a max of a year or two. The purpose of the off-site storage was for emergency business recovery in the event of a major disaster. It was not for lawsuit discovery processes. If it provided info for a lawsuit, well and good, but there was no guarantee the info would be available for legal purposes.

    Eventually, once we thought everything that could possibly be pertinent was on the special e-mail servers, we’d take backups of those servers, using specified backup software, and ship the tapes to a company that specializes in sifting through all the suspect e-mails. These companies would do their magic and relay the info to the law firms involved.

    I have no clue what the process was for the IRS, but I’d be exceedingly surprised if they exceeded the requirements that private companies use for business continuity planning.

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