Don't delete those emails!

Well, we didn't get Chuck Rosenthal's testimony yesterday, but we are getting it today.

Harris County District Attorney Chuck Rosenthal took the stand this morning to defend the deletion of thousands of e-mails after they were subpoenaed in a federal civil rights case.

Rosenthal said he's had minimal training with computers and often asks his secretary or his IT department to fix mistakes he makes with computers.

He said he has never paid bills online, never made a chart or graph on the computer and the letters he writes are short.

"I still don't know how to type," Rosenthal said.

Ah, the "I'm an idiot" defense. Certainly time-honored, and often very believable. And it goes well with the "no independent recollection" defense.

OK, it's easy to make fun (and I'm going to go out on a limb here and say there's more where this came from), but Rosenthal's goal here is 1) not to get cited for contempt, and 2) not to give the plaintiff's case any extra ammunition. On the former score, at least, while it's never flattering to admit that you don't know your ass from your Delete key, it does offer evidence that you weren't being malicious. It won't surprise me if this works for him.

More testimony:

Earlier this morning, Brian Rose, an assistant district attorney in the office testified that he was charged with explaining the situation to Lloyd Kelley, the attorney representing two brothers who are suing the Sheriffs office for wrongful arrest.

Rosenthal, who is a witness in the case, had his e-mails subpoenaed to flesh out a legal theory about the DA's investigation of the deputies.

Rose said Rosenthal deleted the e-mails after he thought they had been saved and separated out for Kelley. Rose also said computer personnel were working to retrieve the deleted e-mails.

On Thursday, one of Rosenthal's top lieutenants told a federal judge that the prosecutor should have known better than to delete some 2,500 e-mails after they were officially requested for a civil rights case.

"The better practice would have been to not delete them," Scott Durfee, Rosenthal's general counsel, said in a hearing to determine whether the county's top prosecutor should be held in contempt. "He said he deleted the e-mails and assumed I had saved them or that they were saved in the system."

The district attorney should have known not to delete the e-mails because they were evidence, Durfee told Hoyt.

"This is not something that would be foreign to a practicing attorney?" Hoyt asked Durfee.

"It would not," Durfee replied.

This, unfortunately, is not something that can be glossed over with claims of computer illiteracy. If we were talking about paper documents, would Chuck Rosenthal have shredded them under the assumption that someone else had saved a copy? Surely not while the matter was still being litigated. He should have treated his email similarly. It's not like email is some newfangled not-well-understood technology. If Judge Hoyt nails him for this, that will be the reason for it: He didn't sufficiently respect the evidence. We'll see what happens.

[Rosenthal's e-mail administrator, Gary] Zallar's testimony to clear up how many e-mails Rosenthal is accused of deleting only seemed to muddy the waters as he explained the intricacies of the office's e-mail backup system. The issue was further confused because Zallar continues to work to retrieve e-mails that are responsive to the subpoena.

I really wish I knew more about their system and procedures. Email is harder than you think to permanently destroy, but depending on how people stored their emails, it may be difficult to impossible to find what you're looking for. I've got old Exchange PST files dating back to 1996 on CD somewhere in my desk. Finding a specific piece of email from them would be the proverbial needle in a haystack, but given enough time and determination it could be done. Of course, an admin would have to know about their existence first, since none of this stuff is likely to be on any backup tape any more. I don't envy Mr. Zallar his task, that's for sure.

One more thing:

Earlier in the day a Republican candidate in the district attorney race answered questions about her e-mail use while working in the upper echelon of Rosenthal's administration.

During brief questioning by Hoyt, Kelly Siegler said she never saves her e-mails, deleting each one after she deals with it.

"I never saved e-mails, since the beginning of e-mail," Siegler said.

Um, has the DA's office had an email retention policy before now, and would it not have applied to ADAs like Kelly Siegler? If so, isn't this just a teensy bit problematic? I'm just saying.

UPDATE: Too many updates, not enough time. Here's the lede to that story now:

Harris County District Attorney Chuck Rosenthal acknowledged in testimony today that he made some "errors" in previous sworn explanations for why he deleted thousands of e-mails that had been subpoenaed for a civil rights lawsuit.

The inconsistent statements made by Rosenthal in affidavits and depositions filed with the court made for a bumpy morning as the embattled DA came under fire while defending his Nov. 5 deletion of more than 2,000 e-mails from his office computer.

[...]

Opposing attorney Lloyd Kelley established that Rosenthal swore to the court that he deleted e-mails from his inbox, his sent box and his delete box in bulk by their dates.

Rosenthal testified today he selectively deleted e-mails as he read the subject line on each one. He said he opened a few of the e-mails to re-read them before deciding whether to save or delete them.

Kelley also established that Rosenthal said in a deposition that he had tried to delete all but the past months e-mails.

"If that was true, then this is false," Kelley said pointing to a large notepad on an easel in the courtroom on which he wrote out Rosenthal's prior statements.

Rosenthal said there were "errors" in his affidavit. He also said that some of his statements were false when confronted with the inconsistent statements.

Rosenthal said he had been asked by his information technology department to periodically clean out his e-mails because of storage space. He said he decided to delete e-mails after his general counsel, Scott Durfee, printed a log of all his e-mails.

That log has been the guide in determining how many e-mails Rosenthal permanently deleted.

Rosenthal told Hoyt that he thought his e-mails, even deleted, were infinitely retrievable on the system.

He said he has since learned that his office's capabilities only hold deleted e-mails from the past five to 10 days.

Needless to say, this sounds worse for him. We'll see what else happens.

Posted by Charles Kuffner on February 01, 2008 to Local politics