Limiting Access to Electronic Evidence Could Shrink Consumer Rights, Enable Secrecy

We expect technology to keep us informed and help us make smarter, safer decisions. Whether in our daily lives or in a court of law, access to information is crucial to the process of finding truth. Yet, proposed court rules that control how electronically stored information can be obtained for court are being debated by the Judicial Conference of the U.S. If these rules pass, they would make it more difficult to obtain inside corporate information that is necessary to hold corporate CEOs and other executives accountable.

In several cases of corporate greed run amok, such as the case of Enron, emails were a vital source of evidence. In cases such as those involving Vioxx and Propulsid, electronic information proved essential in uncovering what the drug companies knew about the dangers of their products and how long they knew it.

In the case of Enron…
On October 12, 2001, Arthur Anderson council Nancy Temple sent an email to colleague Michael Odom saying, "It might be useful to consider reminding the engagement team of our documentation and retention policy. It would be helpful to make sure that we have complied with the policy." Odom and Anderson partner David Duncan told investigators they understood this email to be a signal to destroy documents related to the auditing of Enron.¹

In the case of Vioxx…
A March 9, 2000 email by Merck senior scientist Edward Scolnick acknowledged that a link between the painkiller Vioxx and an increased risk of heart attack or stroke was "clearly there" and called the situation a "shame."² After a 73-year old woman died of a heart attack while taking Vioxx, Merck vice president for clinical research Alise Reicin also used email to recommend that researchers change finding on the woman's cause of death to "unknown" "so that we don't raise concerns."³

In the case of Propulsid…
An August 28, 1998, internal email informed Johnson and Johnson personnel that, at a time when Propulsid's dangers were becoming clearer, a just-completed clinical trial found almost no difference between the effectiveness of Propulsid in treating heartburn and that of a placebo.⁴

Each of these cases involved electronically stored documents, especially quick e-mails where someone clicked "send," thinking the message would be read only by the intended receiver. In each case, as the web of lies and deception started to unravel, attorneys were able to show the evidence to jurors in the hopes of holding corporate wrongdoers accountable. It's companies like that that want to change the rules so that jurors might never see damaging emails.

Proposed E-Discovery Rules
The Federal Rules of Civil Procedure spell out what information must be disclosed in litigation, and the Judicial Conference of the United States is the body which determines the content of these Rules. In June 2005, a committee of the Conference debated amendments to the rules as they relate to electronically stored information.

As businesses now rely predominantly on electronic data and communications, it is vital to public safety that the Judicial Conference set and preserve rules that protect consumers' right to access corporate information essential to holding businesses accountable in court for deceptive and wrongful conduct.

Limiting access to electronic files that are relevant to proving claims would be a regressive step, threatening public safety and protecting corporate malfeasance.

The proposed rule changes include:

• Destruction of relevant information - Under certain circumstances a party may not be held responsible for destroying electronically stored information that was destroyed through routine system purging. If this rule were adopted, companies could purge information more frequently and might not be held accountable for its destruction.

• Disclosure of archived information - Companies routinely archive electronic information when it is no longer important for everyday use. The proposed new rules would exempt them from disclosing some archived information unless a judge ordered them to do so. This amendment is counterintuitive, since the main advantage of electronic documents is that they are readily accessible.

• Retrieval of information already disclosed - If a party were to turn over legally privileged information (such as communications between clients and lawyers) it could demand that it be returned.

Sources:

1. Beltran, Luisa, "Anderson Exec: Shredding Began After Email," CNNMoney, 21 January 2002.
2. Comments of the Trial Lawyers for Public Justice and the TLPJ Foundation to the Advisory Committee on the Civil Rules, 15 February 2005.
3. Berenson, Alex, "Evidence in Vioxx Suits Shows Intervention by Merck Officials," The New York Times, 24 April 2005.
4. "Smoking Gun Documents: Propulsid Dangers," Safer Drugs Now.
   

June 2005