Originally Posted by lawyerdad
On a very broad level, I agree with the point you're trying to make. But this is so riddled with inaccuracies that it doesn't really make sense. A "violation" of what? eDiscovery isn't a set of laws one can violate, it's a buzzword for how electronic information is handled within the context of traditional litigation discovery. And what "penalties" are you talking about? Yes, there are consequences to deliberately destroying evidence, whether it's emails or paper records. But those consequences are within the litigation context and the form they take are shaped by context. And by whom are companies "required" to preserve emails? If records are destroyed and there is subsequent litigation, the other side can certainly urge the judge or jury to draw various inferences from the quick destruction of records. And for that and other reasons, many companies have internal
policies on record retention and preservation. And while companies in various industries can be required to preserve records for a whole variety of legal and regulatory reasons, there's no general "eDiscovery" law that says all companies must preserve emails for xx months.
I am not a lawyer, so I certainly have to defer to you. So the below is just my understanding/opinion.
I agree that there is no uniform code of eDiscovery or regular discovery rules. As you point out, I wasn't particularly accurate or eloquent in my post. I'm just saying that if a corporation was accused of doing something similar to what the federal government did, there would be litigation and they would be required turn over internal email (as you know). When the accusations came out, the organization would have started some sort of legal hold procedure to prevent any disposing of documents, and many companies sell software that helps companies manage that process and prevent the destruction of said documents.
In this case, the Congressional investigation is similar to a trial and you would think the executive branch should follow similar procedures. We could even assume that seeing it would be a federal case, they should follow the federal rules of civil procedure. What are the penalties for violating said procedures? I don't know - I would defer to you.
Furthermore, the federal government should, at least in my opinion, be required to be more open to the public (and as a result in this case, a Congressional investigation) than a corporation. I find it disturbing that the government can even simply "lose" or "accidentally" destroy electronic documents when they (should) be required to produce those to the public for FOIA requests any way.
Edit: Also, this may just be the media being retarded, but the below isn't even a valid reason. While there may be local copies of email stored on the computer, if they're using Exchange, there are server side emails. Just like I can access my email via phone, and internet browser. They would also archive those on the server side for this very reason.
The IRS told congressional investigators Friday it cannot locate many of Lois Lerner's emails prior to 2011 because her computer crashed that year.