Hillary's emails and e-discovery

In my earlier post on Hillary's emails, I wrote:

Anything I send through my work account is permanently preserved and subject to discovery. ... The problem with Hillary's single, not-controlled-by-the-State-Department, email account, on the other hand, is that it allowed her to go through her emails after the fact and delete any emails that in retrospect she judged to be embarrassing, thereby making later discovery impossible.

I used the term discovery advisedly. There is an entire legal sub-industry that specializes in combing through the documents of an entity to determine which are relevant to a particular legal purpose. In the old days, this process involved a lot of human labor and was very time consuming: an army of legal assistants manually read each document and determined whether it was relevant. Today, the process still involves human review, but is assisted by a variety of computer tools and is referred to by the term e-discovery. I have known about e-discovery for years. (I even interviewed once for a software engineering job at an e-discovery firm in Silicon Valley.) Wikipedia describes e-discovery as follows:

Electronic discovery (or e-discovery or ediscovery) refers to discovery in litigation or government investigations which deals with the exchange of information in electronic format (often referred to as electronically stored information or ESI). ... Data are identified as potentially relevant by attorneys and placed on legal hold. Evidence is then extracted and analyzed using digital forensic procedures, and is reviewed using a document review platform. Documents can be reviewed either as native files or after a conversion to PDF or TIFF form. A document review platform is useful for its ability to aggregate and search large quantities of ESI. Electronic information is considered different from paper information because of its intangible form, volume, transience and persistence. Electronic information is usually accompanied by metadata that is not found in paper documents and that can play an important part as evidence (for example the date and time a document was written could be useful in a copyright case). The preservation of metadata from electronic documents creates special challenges to prevent spoliation.

For more information about this legal specialty, you can visit the website of the Association of Certified E-Discovery Specialists or The eDiscovery Gold Standard, the website of e-discovery expert Daniel Gold. And here is a New York Times article that discusses state of the art in 2011; presumably, the sophistication of the software has only increased since then.

Wikipedia defines legal hold as follows:

A legal hold is a process that an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated. The legal hold is initiated by a notice or communication from legal counsel to an organization that suspends the normal disposition [i.e., destruction] or processing of records, such as backup tape recycling, archived media and other storage and management of documents and information. A legal hold will be issued as a result of current or anticipated litigation, audit, government investigation or other such matter to avoid evidence spoliation.

Wikipedia defines spoliation as follows:

The spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding. ... The spoliation inference is a negative evidentiary inference that a finder of fact can draw from a party's destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding: the finder of fact can review all evidence uncovered in as strong a light as possible against the spoliator and in favor of the opposing party. The theory of the spoliation inference is that when a party destroys evidence, it may be reasonable to infer that the party had "consciousness of guilt" or other motivation to avoid the evidence. Therefore, the factfinder may conclude that the evidence would have been unfavorable to the spoliator.

The exact process by which Hillary decided which emails to turn over to the State Department is unclear. She has given (for example, in her fact sheet) only brief, incomplete, and informal descriptions of that process. More important, we must take her word that the process she describes was, in fact, the process that was followed; that is, we have no independent third-party verification that she really did what she said she did. And then she deleted approximately half of all her emails.

What is clear is that it was possible -- indeed, it should have been considered standard practice -- for Hillary to have turned her email server over to an e-discovery firm to determine which emails on the server were relevant to public business at the Department of State. Such a firm would have produced an independent, third-party certification acceptable in a court of law that all relevant emails were handed over and included all relevant electronic metadata. And, btw, cost would not have been an issue: there are any number of e-discovery businesses that would have jumped at the opportunity to perform the service gratis in return for the privilege of being able to advertise that they had done so for the Secretary of State.

If Hillary did not use a certified e-discovery process, this allows an inference to be drawn that some emails may have been intentionally destroyed because Hillary had a "consciousness of guilt" with respect to such emails or some other motivation to avoid the evidence.