The history of eDiscovery arguably began with a political scandal: Iran-Contra. The Iran-Contra affair saw the Reagan administration accused of selling arms to Iran and funneling the profits from those sales to the Contras in Nicaragua. In 1988, Oliver North, a staff member on the National Security Council during the affair, stood trial for multiple felony counts stemming from misrepresentations to Congress about his role in the affair.
Some of the strongest pieces of evidence against North came from his emails, emails he thought he had deleted. Despite North’s attempts at spoliation, the White House email server kept archives of all deleted emails, which soon became evidence first for the Congressional committee investigating Iran-Contra and later for North’s trial. The discovery of electronic documents has played a significant role in political scandals ever since.
(Side note: North also gave some free press to the Schleicher Intimus Shredder after testifying before Congress that he used that model to destroy paper evidence as well. Afterwards, sales reportedly jumped 20 percent.)
But Her Emails—All 650,000 of Them
As the amount of electronic data created by politicians and regular people alike has continued to skyrocket, the amount of political controversies involving electronic discovery has grown apace. Jump ahead a few years from the Iran-Contra affair and you’ll find eDiscovery playing a part in multiple major political scandals.
There is, of course, the Hillary Clinton email scandal. This political imbroglio stemmed from Clinton's use of a private email server during her time as Secretary of State. During her time as Secretary, Clinton almost exclusively used her family email server, housed in basement of the Clintons' Chappaqua home. During that time, she sent more than 100 emails containing classified information, and an additional 2,000 whose contents were retroactively marked as classified.
After news of the private email server was released, the controversy plagued Clinton throughout her campaign. Though then-FBI Director James Comey eventually recommended that Clinton not be prosecuted for her mishandling of classified information, it was hardly an exoneration. Then, with just 11 days until the election, Comey announced that he was reopening the investigation after 650,000 new emails were discovered. Nine days later, just two days before the election, Comey reported that the emails contained no new information that would cause the FBI to change its earlier conclusion.
So, how did the FBI get through hundreds of thousands of emails in just days? eDiscovery, of course.
We’re not sure exactly what the FBI’s document review procedure involves, but as Logikcull co-founder and CEO Andy Wilson told CBS News at the time, "If they do it in a more modern way, it could be done literally in a couple of hours or a day or two."
As is the case in almost all document reviews, most of the newly discovered emails likely weren’t relevant to the investigation. In many reviews, 90 percent or more of a document corpus will be irrelevant, containing things like spam, system files, duplicate data, etc. Cull the junk and you’re left with a more manageable 65,000 documents or so. From there, sophisticated searches based on keywords, metadata fields, creation data, and other parameters can help reviewers hone in on the most relevant information quickly—or announce that there was nothing worthwhile to begin with.
Indeed, had the FBI spent those hours or days reviewing the documents before making its initial announcement, we may even have a different president today. That is, at least, Hillary Clinton’s take on it. A few months after the election, Clinton announced that she believes Comey and Russia were largely to blame for her defeat.
The fallout from the email scandal is still with us today, and not just in the form of our current president. The FBI’s handling of those emails was, for example, ostensibly the reason for President Trump firing James Comey.
The Trump Campaign and Those Pesky Emails (and Tweets and Text Messages)
Then, of course, there is the concurrent investigation into Russian interference in the election and any connections the Trump campaign had to such. That has raised a host of it’s own sub-scandals and sub-sub-scandals.
Many of these involve important discovery elements. The investigation into General Flynn's foreign policy discussions with the Russian ambassador before Trump's inauguration, for example, raised important questions about Fifth Amendment protections and the discovery process. Namely, can the Fifth Amendment's protection against self incrimination shield someone from having to produce incriminating documents during a criminal investigation? Yes, if the act of producing those documents would be compelled, testimonial, and incriminating. Whether the information the government sought from Flynn satisfied those conditions was never determined, however. In December, after originally refusing to comply with a government subpoena, Flynn pleaded guilty to lying to the FBI. He is currently cooperating with the Russia inquiry.
Meanwhile, the investigation into Trump campaign policy adviser George Papadopoulos’s contacts with Russian agents combined both email and social media. Papadopoulos ended up facing FBI scrutiny after he told an Australian diplomat about Russia’s “political dirt” on Clinton. His emails, it was soon revealed, were full of references to supposed Russian information and regular requests to travel to Russia to meet with Russian politicians and agents. Then, one day after an interview with the FBI, Papadopoulos deleted his Facebook account, which contained communications between himself and Russian agents. Didn’t he learn anything from Oliver North?
Of course, the Russia-related scandals aren’t just about Trump’s fellow travelers. Two members of the FBI are also facing scrutiny for their role in the investigation into Russian election interference. Justice Department officials are now looking in to text messages between an FBI investigator who worked on the Russia investigation, Peter Strzok, and FBI lawyer Lisa Page. Strzok and Page were romantically involved and, during the run up to the election, exchanged several messages critical of Donald Trump—like calling him a “douche.”
In December, the DOJ gave Congress hundreds of text messages between the two before they became part of the investigation. But the FBI’s system for retaining text messages had failed to preserve texts between December 14, 2016, and May 17, 2017, the day Robert Mueller was appointed to investigate Russian election meddling. The failure was due to “misconfiguration issues related to rollouts, provisioning, and software upgrades that conflicted with the FBI's collection capabilities,” the Bureau said.
Last week, the Department of Justice turned over even more texts from the duo, 384 pages of communications in total. Like the Clinton emails, most of them will be worthless—”Hey,” “You up?” “🐙” and the like. But if they contain valuable information, modern discovery technology should make that information easy to find.
Speaking of preservation issues, the fight over "Fire and Fury," Michael Wolff's contentious exposé on the early days of the Trump administration, offers a timely reminder to update your preservation letters. In a demand letter accusing Wolff of defamation and libel, President Trump's lawyer also reminded Wolff of the duty to preserve potentially relevant ESI. But that section of the letter was taken, almost verbatim, from an exemplar written a dozen years ago. It demanded preservation of Lotus worksheets, WordPerfect docs, and Corel presentations, but not social media evidence. As Craig Ball, author of the original exemplar wondered, "How does Trump forget tweets?!?!"
It's Not the Crime...
Then there’s Don Jr.’s Trump Tower liaison with Russian lawyer Natalia Veselnitskaya during the campaign, a meeting he reportedly thought would reveal incriminating information regarding Hillary Clinton. In an attempt to prove that there was no ill intent behind the meeting, Trump tweeted out copies of the original emails setting up the rendezvous.
Here's my statement and the full email chain pic.twitter.com/x050r5n5LQ— Donald Trump Jr. (@DonaldJTrumpJr) July 11, 2017
That is, he tweeted out scans of paper printouts of the emails.
(Don, what is this, the Clinton administration? Did you fax those emails to Twitter and have them upload them for you? Everyone knows you should produce electronic docs in electronic form, metadata intact.)
Before Don Jr.'s tweets, though, there was a desperate scramble to explain away the meeting, which involved not just Don, but campaign chairman Paul Manafort and President Trump's son-in-law Jared Kushner. The Trump administration initially claimed the meeting was about Russian adoption policy—the Kremlin banned American adoption of Russian children in retaliation for U.S. sanctions over Russian human rights abuses—and not the Clinton campaign. Now, according to a report the New York Times released last night, that explanation is the focus of the Russia investigation:
Prosecutors working for Mr. Mueller in recent months have questioned numerous White House officials about how the release came together — and about how directly Mr. Trump oversaw the process. Mr. Mueller’s team recently notified Mr. Trump’s lawyers that the Air Force One statement is one of about a dozen subjects that prosecutors want to discuss in a face-to-face interview of Mr. Trump that is still being negotiated.
Why the interest? As the Times notes, lying to the press isn't illegal. But, according to one witness, a Trump administration official promised that Don Jr.'s emails "would never get out." The younger Trump's tweets made sure that such a promise was quickly broken, but the statement alone was a sign, in some eyes, that obstruction of justice might have been contemplated.
Everything Is Discoverable
So, there you have it: emails, text messages, social media, and eDiscovery are now at the heart of many political scandals, and will likely remain so for years to come. As we're fond of saying, everything is discoverable.