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Once upon a time there was a military operative stationed in the White House named Oliver North, who had a secretary named Fawn Hall. You may remember them from their televised congressional testimony on the Iran-contra scandal, he looking sharp in a Marine uniform and she wearing knee-high boots. Before they became famous, neither North nor Hall knew that when they hit the delete key on their computer the information was not really erased. But when congressional investigators recovered the deleted information, the public gained a new understanding of how easy it was to recover computer data, and how difficult it was to actually get rid of anything. When a computer deletes a file from a disk drive, the data are not destroyed. The file becomes invisible, but the file, all the data on it and the information the computer has about that file, continue to be stored on the disk drive. Expert data recovery can often identify details about the creation, revision and deletion of data, and might even reveal that crucial evidence was destroyed in order to prevent its production in litigation. In cases where it is discovered that data has been deleted, an inspection by an expert in data recovery is critical. In a recent suit I handled, my client alleged that an employee of the defendant deleted critical company data stored on a laptop computer. After retrieving the laptop, our expert resurrected some of the erased material. Even more damaging, the expert’s report substantiated our claim that the employee engaged in data tampering. Inspection of the opposition’s computer system is often warranted where the data is contained in a form that requires review on the system itself. In recent years, courts have allowed such access. In some cases, courts have gone so far as to require a party to run computer programs to extract data on its system for production. Recent cases have taken a novel approach to data recovery in litigation. One such case was the trademark infringement suit brought by the shopping mall chain Simon Property Group against the Internet price comparison service MySimon.com. In an Indiana federal district court decision issued last year, discrepancies in the documents produced by MySimon.com prompted the court to order that the plaintiff appoint an expert computer forensics examiner who would act as an officer of the court and inspect the defendant’s computer systems for deleted files. The expert was ordered to make a mirror image of the disk drives of the computers in question and recover any deleted files. Thereafter, MySimon.com’s counsel would have an opportunity to determine if any deleted files were privileged before they were turned over to the plaintiff. The expert inspection appears to have been prompted by information indicating MySimon.com employees erased e-mails, documents and PowerPoint presentations created around the time that MySimon.com was trying to arrive at a name for itself. Ultimately, MySimon.com lost at trial. In a January decision, the court gave MySimon.com one year to stop using that name for its comparison shopping service. The ease with which files can be recovered has led to a proliferation of file deletion programs, e-mails that lock or “self-destruct” securely after a period of time and other tools that promise to permanently erase your data. Recognizing that computers can contain important evidence, some of it potentially damaging, many businesses have established a data retention and disposal policy. It calls for data to be systematically deleted after a period of time. The policy must be implemented by an authorized executive and religiously followed. For example, rather than keep e-mails forever, a company could wipe out those messages at set dates. Only individuals with special security clearance could execute the deletions to make sure that no one tampers with the process. Each policy needs to be tailored to the type of business. And the policy must comply with laws and regulations that may require the company to preserve data for a period of time. The policy should be placed on hold and reviewed if a company is involved in a suit. This is because the law requires a company to preserve files or other information that might be discovered. Destroying documents, even in accordance with company policy, will lead to charges of evidence tampering. Litigators will still seek to resurrect deleted files in an attempt to uncover a smoking gun. However, a policy of regular deletions can minimize the risk that the data will lurk within a computer system waiting to be discovered. Joel Rothman is an attorney and shareholder in the South Florida firm Seiden Alder Rothman Petosa & Matthewman. He welcomes questions or comments at [email protected].

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