2008-04-03 White House eMail Decision - No eDiscovery Misconduct

In today's decision in Alexander, et al. v Federal Bureau of Investigation, et al., Civil Action Nos.96-2123/97-1288 (RCL) Judge Royce C. Lamberth ruled that plaintiff's had produced simply no evidence, either clear and convincing to support a finding of contempt, and "simply no evidence of any deliberate attempt to conceal the truth." [Emphasis added].

What is especially notable is the not-too-subtle undercurrent that there may indeed be a divide that separate attorneys who know what they don't know about electronic discovery, and know how to conduct inquiries and make discovery requests in aid of obtaining that information, and those who will remain in the dark:


"The Court has concluded that the essential errors made by the White House Counsel’s Office were caused by a lack of familiarity with computer terminology and language and workings by the lawyers involved. Mr. Barry, the computer expert, simply talked a different language, and the lawyers he dealt with did not fully appreciate the significance of some of theinformation that he gave them, and the information he didn’t give them. All of this occurred long before development of current sophisticated ways that lawyers have had to learn to deal with computer experts. "

"You have to learn to ask the question in a number of ways, and probe and examine and get into the nitty-gritty to understand what the truth is. None of the White House lawyers involved in this matter did that. But plaintiffs produced no evidence whatsoever that any of those lawyers deliberately obstructed justice, or deliberately provided what turned out to be false information to the Court."

Perhaps most succinctly put by Judge Lamberth:

"It calls to the Court’s mind its own experience in dealing with intelligence officials, i.e., if you don’t use the right words in your question, you won’t get the right answer."

Link to the decision: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?1997cv1288-359