The recent news that the U.S. Central Intelligence Agency destroyed videotapes
of interrogations of two terrorist suspects may offer a timely reminder for
CIOs at private companies in the U.S., tasked with electronic evidence preservation
rules since last December.

The e-discovery rules, amendments to U.S. courts' Federal Rules of Civil Procedure,
don't apply to the CIA, but the agency's decision to destroy videotapes showing
harsh interrogation techniques may show private companies how not to handle
evidence, some e-discovery experts said.

The e-discovery rules require U.S. companies to keep electronic records when
they're faced with a civil lawsuit or the likelihood of a lawsuit. In effect,
what this means is that companies should archive e-mail and other electronic
records, said Ralph Harvey, CEO of Forensic & Compliance Systems, an e-mail
archiving vendor based in Dublin, Ireland. "The lesson learned is you keep
everything for a finite period," he said.

In the CIA case, several lawmakers have called for an investigation into the
destruction of the videotapes. The tapes, recorded in 2002, were destroyed in
November 2005, when there was a heated debate about the use of harsh interrogation
techniques on terrorism suspects. Some former staff members at the government-created
9/11 Commission have also questioned whether the tapes were evidence that the
CIA withheld from the group, which was investigating the Sept. 11 terrorist
attacks on the U.S.

In the e-discovery rules, companies can be subject to significant fines for
not producing electronic evidence they're required to keep. In May 2006, even
before the new e-discovery rules went into effect, Morgan Stanley agreed to
pay a US$15 million fine for failing to produce e-mail linked to several legal
investigations.

"Ultimately, the issue is you don't know how important that e-mail is
to someone else," Harvey said.

One of the most tricky issues with e-discovery is the security of the evidence
a company is supposed to preserve, Harvey added. Companies need to be able to
find the electronic records, and in some cases, they may need to be able to
prove that they didn't receive a certain e-mail message, he said. In nearly
every case, they'll need to assure the court that their record is accurate.

"You can't say you're in compliance when Bob from administration, with
a slight slipup, can delete all e-mails," he said.

Another issue the CIA case brings up is that electronic evidence can come in
many forms, said Chris O'Brien, vice president of operations for Xerox Litigation
Services. Right now, e-mail is the focus of e-discovery rules, but instant messages,
electronic voice mail, and Web-based video conferencing could fall under e-discovery
preservation rules, he said. "Anything that's electronically preserved
could theoretically be subject to discovery," he said.

O'Brien said he'd be surprised, however, if many companies are archiving their
video conferences in order to meet e-discovery rules.

Perhaps the biggest lesson is not to destroy evidence when it's part of an
ongoing investigation -- in the CIA's case, the 9/11 Commission inquiry, said
Patrick Egan, a white-collar criminal defense lawyer based in the Philadelphia
office of the Fox Rothschild law firm. "Always tell the truth," he
said.

IDG News Service

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