When evidence is erased, everyone’s access to it is denied, but erasure creates an asymmetric advantage for the perpetrator. Loss of access to email evidence can shield the perpetrator from the orderly process of investigation and justice. Destruction of evidence conducted in pursuit of a politically partisan goal weakens the public’s perception of government integrity. The central goals in cases of evidence destruction must be to restore the public’s access to evidence and nullify the perpetrator’s illicitly obtained advantage. The court’s treatment depends on its assessment on whether the destruction was likely done in bad faith.
As Cleta Mitchell wrote recently, “Federal courts have held, in the context of trial, that the bad faith destruction of evidence relevant to proof of an issue gives rise to an inference that production of the evidence would have been unfavorable to the party responsible for its destruction. See Aramburu v. The Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997).”
Lately, instances of email erasure perverted the orderly investigation of actions which appear to be gross mismanagement or attempts to thwart investigations of criminal activity, i.e. bad faith.
At the Internal Revenue Service (IRS), within the small group that accepts or denies applications for 501(c)(4) tax status, there has been a small epidemic of email erasures. This made it nearly impossible to conduct an investigation into the many complaints of partisan treatment of applicants. Lois Lerner, a Director, reported that her computer crashed and all emails were lost, and that there were no backup “tapes.” At a Congressional hearing, she refused to answer most questions and promptly retired. Her co-worker Nikole Flax reported that her computer also malfunctioned, erasing relevant emails. Other reports state that between 6 and 20 computers in the 501(c)(4) applications group crashed and lost emails. This non-credible epidemic of theme-specific technical failures smells like collusion to destroy evidence.
Against Department regulations, the Secretary of State chose to use a private email server. After her term as Secretary of State, she chose which emails to share with the Department and then she erased all others on the server, destroying access to them. That arrangement provided no backup “tapes” that could restore the records. This destruction of emails made it difficult to probe the application of U.S. policy in international affairs, especially in Benghazi, and has become a controversy over whether the Secretary should have known that hundreds of emails she ran over her personal email system were classified, and that a significant number were classified at Special Access Program level (above Top Secret). Her personal email system was unsuitable for classified materials. In classification procedures, the lack of a classification stamp does not obviate the special handling procedures that are required for materials that should be kept secret.
More recently, the IRS erased the email storage of a senior attorney who was working in an international tax case against Microsoft that had been underway for 8 years. The senior attorney had hired a law firm to help him take testimony from Microsoft, a tactic that was impermissible under IRS rules. A court had ordered that the senior attorney’s email hard drive be preserved as part of a FOIA request from Microsoft. Erasure of the hard drive had the effect of hiding evidence that Microsoft should rightfully have had access to. The email hard drive would likely have contained information that was impermissibly obtained and might have affirmed Microsoft’s position.
Erasing emails is easy to do, even when done correctly, but recovering “erased” emails can be very difficult. If you use a networked email system (e.g. Hotmail or Yahoo), the emails are kept on a network server and provided you are the owner or have a suitable court order its content is available on backup tapes.
On the other hand, if your email system uses a private hard drive for storage, the loss of your hard drive can make recovery very difficult. If an expert cannot resurrect the erased files, you would need to contact everyone who you suspect received your emails or sent you emails, pleading for copies.
It is unclear if these government email hard drive erasures were coached or just a consequence of copycats who correctly observe that there has been no penalty for using this desperate and cynical tactic. There should be a serious consequence for mismanagement or intentional erasure of hard drives that perhaps contain evidence of wrongdoing. The erasing party should have the burden of proving the erasure was accidental and could have happened to someone exhibiting good management practices.
The victims of email erasures should not be further victimized by enlarged legal bills – those should be borne by the erasing party. Furthermore, courts should not permit the party who erased evidence to mount an unfettered “he said, she said” defense.
Alan Daley writes for The American Consumer Institute Center for Citizen Research, a nonprofit educational and research organization. For more information about the Institute, visit www.theamericanconsumer.org or follow us @ConsumerPal.