Citizens for Responsibility and Ethics in Washington v. Executive Office of the President, Case No. Civil 07-1707 (D.D.C. July 29, 2008) and National Security Archive v. Executive Office of the President, Case No. Civil 07-1577 (D.D.C. July 29, 2008)

In this case, two political watchdog groups (National Security Archive and Citizens for Responsibility and Ethics in Washington) claimed that several million emails had been improperly deleted from White House computers. Magistrate Facciola previously recommended to Judge Kennedy that the Executive Office of the President (“EOP”) be ordered to collect and preserve all e-mails sent or received between March 2003 and October 2005. The EOP argued that this order is unnecessary because “substantially all” e-mail sent or received between the relevant dates should be contained on existing back-up tapes.

Magistrate Facciola called this argument “fundamentally flawed because it presumes that all e-mails sent or received between March 1, 2003, and May 22, 2003, remained on the EOP network on May 23, 2003, when the earliest existing back-up tape was created.” Slip opinion at 4. An employee would only need to move the email into a personal folder sometime before May 23, 2003 and that e-mail would not be present on any back-up tape.

The court had previously raised the possibility of ordering the forensic imaging of data on workstations which would allow for the preservation of data on slack space but not require workstations to be quarantined. The EOP was ordered to figure out how much this would cost. Since there were 545 workstations at issue and the cost of imaging a 100 GB hard drive is between $400 and $1,000 each, the total cost could be over half a million dollars.

The court decided against ordering forensic imaging in this case, but left open the possibility for the future. “The Court takes no position on whether forensic imaging would be appropriate at a later stage of the litigation, but at this time—with a dispositive motion pending—the limited potential benefit and high potential burden cannot justify its use as injunctive relief.” Slip opinion at 7.

This should send up several warning signs for those responsible for preserving data. First, the courts are getting smarter on technical matters and thus merely claiming you have all the required email isn’t going to cut it. Second, back-ups taking place years late is a big problem. Third, forensic imaging, while expensive, was left open as a possible remedy should the case and the behavior causing the email deletion warrant that tactic.

Read the Opinion