You’d have to have been in a coma (lucky you) to have missed the presidential ire and fury roused by the book, Fire and Fury: Inside the Trump White House by Michael Wolff and its excerpts in New York magazine. In them, we learn the President is an insecure, incurious buffoon and his posse of dim opportunists are a bunch of toadies and backstabbers (including many doing double-duty as backstabbing toadies). Who knew?
Until Trump tried to restrain publication of the book and demanded retraction of the article, I didn’t think this latest dust up had anything to do with e-discovery or with me.
Boy, was I wrong.
Trump’s Beverly Hills lawyers sent a letter to author Wolff and his publisher Henry Holt and Co., Inc. threatening a libel suit and seeking to block publication (i.e., a “prior restraint” contrary to that pesky First Amendment), to wit:
Mr. Trump hereby demands that you immediately cease and desist from any further publication, release or dissemination of the Book, the Article, or any excerpts or summaries of either of them, to any person or entity, and that you issue a full and complete retraction and apology to my client as to all statements made about him in the Book and Article that lack competent evidentiary support.
Please also send immediately an electronic copy of the full text of the Book, in searchable form, and send via messenger a hard copy of the Book to my office address at the top of this letter, so that we can fully assess all of the statements in the Book.
Ironically, ‘Don’t let ANYONE see that book, but, hey, can I get a free copy?’
I learned of the letter when it circulated among the Council of the Computer and Technology Section of the Texas Bar with the suggestion to check out the letter’s detailed request for ESI preservation. Reading it, I was struck by how thorough, polished, yet dated the language seemed. It was eerily familiar, and with good reason: of the letter’s eleven pages, I’d written more than half of them. The text aligned—verbatim—with the exemplar letter in the Appendix of my well-worn article entitled “The Perfect Preservation Letter,” something I penned a dozen years ago, before Facebook, the Cloud and iPhones.
Oh, rapture! The Leader of the Free World likes MY words enough to steal them pages at a time and ennoble them as the Presidential standard for ESI preservation! Cool! Imagine how George Socha might feel if the EDRM diagram replaced the Presidential Seal?
Okay, I’ll calm down. It wasn’t the President, as he apparently lacks the attention span to read eleven pages. It was just his lawyers. Too, the language wasn’t stolen exactly because, before such demands were commonplace I wrote it to help lawyers draft preservation demands.
I’m just excited to see my work crop up that way, even if only you, dear reader, will know its origins.
There is an e-discovery takeaway here as well. The President’s lawyers did something I’ve railed against for ages: they didn’t tailor the demand to the evidence or the issues. My preface to the exemplar demand they lifted read:
What follows isn’t the perfect preservation letter for your case, so I don’t recommend adopting it as a form. I include it here as a drafting aid and to flag issues unique to EDD [Electronic Data Discovery]. You should tailor your electronic discovery efforts to the issues, parties and systems in your case. Be thorough insofar as data may be relevant, but eschew the “everything and the kitchen sink” approach. Use common sense. If your preservation demand effectively requires your opponent to pull the plug on every computer, what good is it? If you can’t articulate why particular ESI is potentially relevant, perhaps you shouldn’t demand its preservation.
We’ve come a long way since the heady, early days of e-discovery when there were few e-discovery tools extant and most evidence resided on PCs and in e-mail. Today, we must be thoughtful and surgical in our preservation demands and in our preservation. Our demands must pass a proportionality smell test, and we ignore modern, mobile sources at our peril.
Even a dozen years ago, I argued for more than what the President got:
The preservation letter demands your best effort for a host of reasons. It’s the basis of your opponent’s first impression of you and your case. A well-drafted preservation letter speaks volumes about your savvy, focus and preparation. An ill-drafted, scattergun missive suggests a formbook attorney who’s given little thought to where the case is going. A letter that demonstrates close attention to detail and preemptively slams the door on cost-shifting and “innocent” spoliation bespeaks a force to be reckoned with and signals a case that deserves to be a settlement priority. The carefully-crafted preservation letter serves as a blueprint for meet and confer sessions and a touchstone for efforts to remedy destruction of evidence.
In 2018, what’s an opponent to make of a demand that mentions Zip disks but not social networking content? How does Trump forget tweets?!?! Was there justification to demand wholesale forensic imaging in the absence of a need for forensic analysis? And the big question:
Who still uses Lotus 123?
I concede I’m being unfair to the President’s lawyers. I can hardly fault them for choosing my work as their touchstone. I’m flattered; still, some freshening would have been wise.
After all, these are the President’s lawyers. The presidency should be something special; a cut above the rest. So, too, we should expect more from those who serve our Commander-in-Chief; not all those petty, puny pezzonovante Mr. Trump heedlessly anoints and discards.
Growing up, they told me “anyone can be President.” Apparently, it was a warning.
Happy New Year.