Tobacco.org

SLIDE PRESENTATION: Information Inflation: Can The Legal System Adapt 

by the end of the Clinton Administration over 32 million e-mails created or received within the Executive Office of the President had been electronically preserved for accessioning with the National Archives and Records Administration (NARA).48 [16] The 32 million e-mails were a prime subject of discovery in U.S. v. Philip Morris, the RICO lawsuit filed by the government in 1999 against numerous tobacco companies.49 In that action, defendants filed 1,726 requests to produce against 30 agencies, requesting U.S. records going back to the early 1950s, as well as all relevant e-mails. The government responded to discovery as best it could using its available resources – but decidedly in what will be deemed here as a “pre-FRCP rules change mode,” namely: with respect to e-records, government lawyers oversaw searches by unilaterally choosing the set of search terms using simple keywords.50 Later, a secondary search was conducted based on limited negotiations held with and input from defendants with respect to additional keywords.51 45 46 See id. at 347-48. Thomas E. Brown, History of NARA’s Custodial Program for Electronic Records: From the Data Archives Staff to the Center for Electronic Records, 1968-1998, in THIRTY YEARS OF ELECTRONIC RECORDS 16 (Bruce Ambacher ed., 2003). 47 See Armstrong v. Executive Office of the President, 877 F. Supp. at 715 (Exhibit C, setting out guidance issued to White House staff at what was the onset of the “paperless” era for retention of e-mail within the EOP). 48 See Allen Weinstein, Archivist of the United States, Ask the White House (Jan. 17, 2006), http://www.whitehouse.gov/ask/20060117.html. 49 See United States v. Philip Morris USA, 449 F.Supp.2d 1 (D.D.C. 2006) (1,600 page opinion by Judge Gladys Kessler). 50 Keywords included such common terms as “tobacco,” “smoking,” “cigarette,” “tar,” “nicotine,” and “Philip Morris.” See Jason R. Baron, Toward a Federal Benchmarking Standard for Evaluating Information Retrieval Products Used in E-Discovery, 6 SEDONA CONF. J. 237, 239 (2005). 51 Id. 11

Slide 12: Richmond Journal of Law & Technology Volume XIII, Issue 3

[17] For the 18 million presidential record e-mails within NARA’s legal custody, the search process found a universe of some 200,000 “hits,” of which over 100,000 were later determined to be responsive in evidencing tobacco policies and practices.52 In undertaking a second-stage manual search to determine responsiveness, it was necessary to put into place a team of twenty-five lawyers, law clerks, and archivists working at NARA more or less full time over a period of six months, reviewing 200,000 emails on CDs, e-mail by e-mail, attachment by attachment, for the purpose of printing out hard copies to be used.53 Additional time and resources were needed to make a further review for privilege.54 [18] The approach taken by the government in Philip Morris most charitably represented a stopgap set of measures put in place to deal with a burdensome search request which placed strains on administrative resources. But the essentially unilateralist, pre-December 1, 2006 FRCP rules-changes approach to confronting a difficult search task clearly fails to scale up; for were the e-mail universe ten times as large, it would have been impossible to assemble a large enough team of reviewers to devote the time for them to manually review each e-mail “hit,” and its attachments, for responsiveness and privilege. [19] Critically, as of January 20, 2009, NARA expects to receive substantially over a hundred million e-mails from the current incumbent White House.55 At the present rate of e-mail creation, NARA expects to receive over one billion e-mails over the course of the next decade as permanently accessioned records of the government. Some parties in litigation have apparently already crossed the billion electronic document threshold.56

Jump to full article »