Search “Hillary Clinton” on Google and before you type the “C,” one of Google’s top suggested searches will be “Hillary Clinton email” (for me it followed “Hillary Clinton age” – a topic for a different blog). The continuing saga stemming from Secretary Clinton’s use of a personal email address instead of a .gov address is big news, in this marathon that is the presidential election campaign. But it’s also headlining pop culture. During the cold open of SNL’s season finale Bernie Sanders (Larry David) reminisced with Hillary Clinton (Kate McKinnon – “Remember when I told everyone to stop talking about your damn emails?” Sanders asks. “What a schmuck!”

Politics and parodies aside, Secretary Clinton’s and perhaps more importantly the U.S. State Department’s email practices and preservation policies, detailed in a State Department Office of Inspector General (OIG) report released May 26, 2016, provide important electronic discovery lessons for litigators. Knowing the facts of your case and related law is not enough to efficiently and effectively conduct discovery in the modern digital age. We need to understand how, for how long, and in what format our client’s and the opposing party’s information – email specifically – is preserved (among other issues) before we can draft or answer document requests and interrogatories.

Unpacking the State Department OIG report reveals defects in its email preservation policies and electronic discovery lessons for practitioners. In 1995, the National Archives and Records Administration (NARA) amended the Code of Federal Regulations to clarify that emails are federal records and, as such, must be “preserved in the appropriate recordkeeping system.” But, according to the OIG report, NARA allows each federal employee to individually determine which of its emails should be archived as federal records and which may be deleted.(Compare NARA’s employee-directed email preservation rule with case law prohibiting employee-directed email preservation in litigation. E.g., Jones v. Bremen High Sch. Dist. 228, No. 08 C 3548, 2010 U.S. Dist. LEXIS 51312, at *21-22 (N.D. Ill. May 25, 2010)).

Federal employees comply with the recordkeeping rules in one of three ways:

1. through 2008, printing and filing;
2. starting in 2009, manually preserving using the State Messaging and Archive Retrieval Toolset (SMART); or
3. starting in 2015, automatic archiving using Capstone.

The value of print and file and SMART as email archiving methods is questionable, since both were sporadically used and hard copies of printed emails were not indexed. And Capstone only captures the emails of 200 senior State Department officials.

The report highlights other glitches in the State Department’s recordkeeping systems related to:

• Use of personal email accounts for government business
• Use of personally owned equipment
• Archived email (.pst) files were inaccessible (e.g., for example, files were corrupted, protected by an unknown password, lacking any data, mislabeled, or incomplete).

Discovery responses and requests drafted with the realities of your client’s or the opposing party’s electronic systems and preservation policies in mind will yield better results. The State Department’s email policies illustrate the point. Requesting communications from the State Department without identifying the likely employees (i.e., custodians) involved would yield incomplete results because email archiving decisions, including what to archive and how (print and file or SMART), were individual to each employee. Furthermore, because print and file was the only way to save emails from 1995-2008 and printed emails were not indexed, finding ways to search “3,000 boxes, each filled with hundreds of pages of documents”(OIG Report at 14) would be an essential element of any discovery plan. Knowing that all State Department documents were not sent to and received from .gov email addresses also would be essential to conducting a thorough search for State Department documents. Secretary Clinton has searched for (using search terms, stay tuned for a future post) and turned over about 30,000 emails (about 55,000 hard copy pages) related to State Department official business. (The State Department has made these emails searchable and publicly available online).

Without a detailed government-sponsored report, gathering the necessary information to draft and respond to discovery requests will require cooperation among counsel. The Wisconsin Statutes set the stage by requiring that parties meet and confer about form of production, timing of discovery, and methods of asserting claims of privilege and work product, among other issues, before electronically stored information may be requested in a document request or produced in response to an interrogatory. Wis. Stat. section 804.01(2)(e).

The State Department is in the process of a long overdue conversion to an electronic email management system which will be complete by December 2016 (in compliance with Office of Management and Budget’s and NARA’s requirement). Take the OIG report as a warning – talk to your clients now about how their emails are archived, for how long, and by whom. Avoid a court concluding about your client what the OIG concluded about the State Department, “[M]anagement weaknesses at the [State] Department have contributed to the loss or removal of email records, particularly records created by the Office of the Secretary.” (OIG Report Highlights).