E-Discovery Lessons From the Presidential Impeachment Proceedings

January 24, 2020Articles The Legal Intelligencer

E-discovery has never been more prevalent and publicly visible than it is today. Potential jurors, who already use much of the same technology as litigants and commonly carry around cellphones with access to data in many forms and locations, are seeing electronic communications and documents used regularly as evidence in public matters almost every day.

Whether we realize it or not, e-discovery has found a central place in the news during the Trump campaign and presidency, and in particular, during the impeachment proceedings.

From early on in his campaign, President Donald Trump made electronic evidence a focal point in relation to his opponent, Hillary Clinton. During one of his 2016 campaign rallies, Trump famously exclaimed, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” Countless voters debated the importance of, and may have even ultimately based their vote on, what was contained in certain emails, how and where they were stored and even if they were deleted in bad faith.

Likewise, Trump himself has frequently created potential electronic evidence throughout his presidency in the form of social media posts, some of which have been cited as evidence to prove or disprove various facts at issue in the Mueller investigation or the current impeachment proceedings. Recently, Trump, a prolific Twitter user, even tweeted about specific witnesses as they were testifying, which has led some to question the motives or veracity of the witnesses involved, and others to argue that such tweets may constitute evidence of witness intimidation.

In fact, at multiple points during the impeachment proceedings, evidence obtained from electronic sources have been arguably the most noteworthy. For example, in his opening statement, Gordon Sondland invoked multiple pieces of electronic evidence, including text messages and emails between him and other important players in the controversy. Arguably, some of the most compelling evidence originated in WhatsApp, a social media messaging application that allows users to communicate quickly with one another, even internationally. Within these WhatsApp messages, Sondland communicated with Kurt Volker, Bill Taylor and top Ukraine officials about Rudy Giuliani, Mike Pompeo, the president and the alleged quid pro quo at the center of the impeachment proceedings.

While most attorneys and litigants may never participate in these kinds of political proceedings, the newsworthiness and public display and use of electronic evidence can provide valuable lessons regarding the importance of electronic discovery in litigation matters:

Sources of electronic evidence continue to expand.

The significance of Sondland’s private communications on WhatsApp, and Trump’s frequent public remarks on Twitter and social media, demonstrates the growing need to search for electronic evidence in more than just traditional email and document management systems. New technology is popping up every week that attorneys and litigants need to be aware of, as the proliferation of new text and instant messaging apps, social media and other data found on cellphones or in the cloud will be an ongoing and expanding source of electronic evidence to collect and analyze in litigation matters.

Electronically stored information (ESI) can often be stored or maintained outside of an organization’s primary server.

The ongoing impeachment proceedings have included references to the Trump administration’s use of separate servers to store different types of documents for reasons of alleged security or sensitivity, as well as the potential existence of an image copy of the hacked DNC server purportedly in the possession of Crowdstrike in the Ukraine. Even more common in everyday practice, organizations are regularly migrating their data to cloud environments or are using the cloud to store at least some portion of their documents and electronic information on a regular basis. These examples can serve as a reminder that clients may maintain relevant information in multiple different servers or storage locations, each of which should be considered for identification and potential collection and search in litigation matters.

Electronic evidence continues to grow exponentially.

The Clinton administration left 32 million emails for public record, the Bush administration left 200-plus million emails, the Obama administration left 300-plus million emails, and the Trump administration will likely leave significantly more. The special counsel investigation led by Robert Mueller reportedly involved 15 attorneys and more than 30 total staff members, and part of their task included finding relevant evidence across millions of documents that they received. With ongoing increases in the volume of electronic evidence, there will continue to be a greater demand for technology assisted review (TAR) and other advanced search methods, as well as attorneys who know how to administer them, to sift through and find the most relevant information.

Electronic evidence may have already become the most important, compelling and necessary type of evidence.

A common strategy on cross-examination is to poke holes in a witness’ memory, the facts of their story, and the like. This makes sense. A witness’ story can change, be misremembered or worse. However, it is more difficult to attack the authenticity or credibility of electronic evidence, which can show a clear trail of its creation, edits and who had access to it. Text messages, emails and instant messages can offer an instantaneous and uncensored glimpse into what the writer is thinking at a key moment in time. Such insight is uniquely compelling in any situation, as are curiously placed responses of “call me” or a sudden change in the tone or formality in the middle of a text message thread. In light of the potential significance of these forms of evidence in such a noteworthy case, and in light of the fact that almost everyone is now carrying around personal devices that store electronic communications, it seems likely that jurors or others evaluating a case will prefer, if not expect, to see that type of evidence in most cases in the future.

Internal policies are important.

The use of WhatsApp by Sondland and others in the Trump administration, and Hillary Clinton’s use of a private email server during her tenure as Secretary of State, serve as strong reminders that employees can often be tempted to work using personal devices or applications, instead of ones that are favored or provided by their employer. With the proliferation of new messaging apps and other emerging means of storing electronic communications and information, there is an increasing need for organizations to create strong policies concerning confidentiality and security, data retention, and computer use, and to continually update those policies to account for the newest trends. Creating airtight policies, following them diligently, and training employees about those policies, can help avoid evidence preservation challenges from arising later in litigation. Such policies can also help to limit the scope of a data breach or the dissemination of an organization’s highly sensitive trade secrets or other information.

Clients should be made aware that their social media posts and content matter.

Tweets and public statements have been frequently cited and used in the impeachment proceedings as a way to establish who knew what and when, to create a timeline, or to use as evidence or admissions of particular facts. Social media content has similar applications in civil litigation, so it is important for litigants to understand its significance. And one last takeaway that might apply in most litigation matters—it is generally a good idea to advise a client against tweeting about a specific case in which they’re involved, or about a witness who is actively testifying about them.

Reprinted with permission from the January 24, 2020 issue of The Legal Intelligencer. (c) 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.