CASE CLOSED … what really happened in the 2001 anthrax attacks?

* USAMRIID promises new Ivins emails “shortly”

Posted by DXer on June 22, 2010

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The FBI’s case against Dr. Ivins is bogus: no evidence, no witnesses, an impossible timeline, science that proves innocence instead of guilt. So what really happened? And why? The “fictional” scenario in my novel CASE CLOSED has been judged by many readers, including a highly respected official in the U.S. Intelligence Community, as “quite plausible.”

* buy CASE CLOSED at amazon *

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After no response to my June 4 email, I sent another email this morning (June 22) …

JOHN Can you advise when the next batch of Ivins emails will be released, and what period they will cover? Thanks. LEW

JOHN’S RESPONSE  …

Batch 59-62 have been processed for release/posting to the website. They should be available shortly for viewing. September 2004 – May 2005.  498 pages.

******

I sent the following email to USAMRIID on June 4

JOHN

  • Documents are dribbled out (where are 2005-2008 emails?), attachments are not released with the appropriate emails, and far too much information is blacked out of what is released.
  • What justification does USAMRIID offer for its apparent continued violation of the FOIA law?
  • You have always been polite and responsive to my emails, but I am still left wondering why you and others should not be held responsible and perhaps even prosecuted for what appears to be willful dereliction of duty.
  • I’ll be happy to post your response and let your side of this story be known.

LEW

NOTE: spoliation of evidence is the intentional or negligent withholding, hiding, alteration or destruction of evidence relevant to a legal proceeding. It is a criminal act in the United States under Federal and most State law.

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31 Responses to “* USAMRIID promises new Ivins emails “shortly””

  1. DXer said

    GAO: What principles of spoliation govern the destruction of documents by the Department of Justice during a pending GAO probe?

  2. DXer said

    There are hundreds of pages that the JAG attorney chose to withhold but here are a few:

    An example of an attachment on Dr. Ivins’ computer that should of have been provided is the “Unfunded Requirement for FY00.doc”
    Dr. Ivins wanted to do research with especially virulent anthrax which would involve animal challenges.

    Another is Research Plan – CpG.doc

    and the

    CpG-anthraxmice.doc

    As another example, the DRAFT dto.doc relating to the upcoming conference being planned by Dr. Ivins that in past years was attended by Dr. Ayman’s infiltrating scientist Rauf Ahmad.

    Another example is

    bioreportresponse.doc

    and another

    Memorandum for Record-Bioport Meeting of 10 March 20001.doc.
    (three zeros appear in title of document on Ivins’ hard drive.

    • DXer said

      In the event litigation is necessary, the advantage to requestors will be that USAMRIID likely will be required to provide an index of documents being withheld.

      It would be simplest if this week they simply upload the requested directories of documents from Dr. Ivins hard drive and thus avoid the need for litigation.

      • DXer said

        The first of the attachments are in the pipeline and will be redacted. It’s been pointed out to me that they were never requested. (Online complaints and expressions of righteous indignation are no substitute for a formal FOIA request). Thus, USAMRIID is owed great thanks for the tremendous efficiency in turning to them now.

        In addition to other FOIA non-Ivins FOIA requests, Sandra has received several other FOIA requests relating to Dr. Ivins. I have urged that she turn to them first (or at least mine) so that people can appreciate her hard work as much as I do.

        I do not think it is worth re-doing production of emails that have already been produced but that’s USAMRIID’s call. Who knows… maybe the September 2001 email missing from the first production about the backing up of computer records will turn up.

        Finally, while she works through what is now a queue of requests, our time can best be spent working up a list of Attachments that need to be produced — which will serve as an aid in ensuring that none are missed.

  3. DXer said

    Spoliation of Electronic Evidence: This Way Be Dragons
    by Sharon D. Nelson and John W. Simek
    June 2005

    Ancient mariners navigated by maps that sometimes depicted dragons in uncharted waters, occasionally even bearing the legend: “This way be dragons.” Within the legal profession, spoliation of electronic evidence has constituted murky, dangerous and uncharted waters, and it is no exaggeration at all to say, “This way be dragons.”

    Then came Zubulake V, and the waters became clearer – but more fearsome. The fifth decision in Zubulake v. UBS Warburg LLC et al (2004 WL 1620866 S.D.N.Y.) came down on July 20, 2004 and its effects have rippled throughout the legal profession. In an otherwise routine employment discrimination case, plaintiff Laura Zubulake moved to sanction UBS Warburg for its failure to produce relevant information and for its tardy production of evidence.

    Warburg’s counsel had issued a litigation hold after Zubulake filed EEOC charges and had orally transmitted preservation of evidence instructions, but failed to mention backup tapes. A visibly disgruntled Judge Scheindlin noted that some employees deleted e-mails in spite of the instructions and others did not produce relevant information to counsel. The judge acknowledged that this was not the fault of the defense attorneys. However, she chided the attorneys for failure to request retained information from one key employee and failure to give litigation hold instructions to another. She admonished the attorneys for failure to talk with another employee about how she maintained her computer files. Judge Scheindlin was clearly irked by counsel’s failure to safeguard backup tapes that might have contained some of the deleted e-mail, thereby mitigating the damage done by the client’s e-mail deletions. Her decision provides a detailed list of the client and attorney shortcomings. Worse yet, evidence eventually recovered from the back-up tapes (and some had inexplicably “gone missing”) clearly showed that relevant evidence favorable to the plaintiff had been destroyed.

  4. DXer said

    What is the DOJ/FBI’s justification for withhholding the 192 pages I see offhand of plain english Amerithrax Weekly science updates until December 2010?

    If in January 2011, Rachel Lieber appeared before a federal district court judge instead of the NAS, what would she say if questioned by the district court judge as the reason for the 2 year delay in producing the documents that serve as a roadmap for the science relied upon by the FBI in its investigation?

    The Attorney General Eric Holder might best send down a memo asking that all documents be preserved, including emails.

    • DXer said

      I guess 4/2002 was the first update but we need to assume that I guess because none prior to that were included

      • DXer said

        May 15, 2002 Amerithrax Genetics and Attribution weekly science update about DTRA mutation study states:

        “These data suggest that the evidence recovered in the Amerithrax investigation was not cultured for an extensive time before sporulation and subsequent weaponization.”

        • DXer said

          The 5/29/2002 Amerithrax weekly update says that the PCR on the hijacker remains was inconclusive. This document was withheld from the NAS until December 2010. Who made the decision that it should be withheld?

        • DXer said

          Of the 606 BA Ames isolates at USAMRIID, two researchers possessed 262 and 314 of BA Ames.

        • DXer said

          A weekly update from Spring 2002 re Sandia mentions the submicroscopic metal flake of unknown origin. The NAS report mentions it was stainless steel.

        • DXer said

          It was the oft-referenced (in the weekly updates) Catherine Fenselau at University of Maryland who was a key scientist working on the DARPA research for which FBI anthrax expert Ezzell made the dry powder out of Flask 1029. She would also be a great interview — most important question is location of all places where research involving that powder was done. The published article I have linked previously explained that the research studied the effect of a sonicator and corona plasma discharge on Ames spores.

          A corona plasma discharge imparts a unipolar charge.

        • DXer said

          It would be neat if out of this conflict-of-interest morass a stainless steel bullet emerged (overlooked and set aside only because it didn’t fit equipment at USAMRIID).

        • DXer said

          The July 26, 2002 Amerithrax weekly update, withheld until December 2010, states:

          “Following the discovery of the micron sized Stainless Steel particles in the NY Post material, Sandia has begun to survey several agar grown Bacillus cereum surrogate samples for comparison. The survey should be completed in 1 week.”

        • BugMaster said

          “Sandia mentions the submicroscopic metal flake of unknown origin. The NAS report mentions it was stainless steel.”

          From a hypodermic needle, perhaps?

  5. DXer said

    The NAS report concludes:

    “The evidentiary material from this case is and will be immensely valuable, especially in
    the event of future work on either this case or other cases involving biological terrorism
    or warfare. It is critically important to continue to preserve all remaining evidentiary
    material and samples collected during the course of this (the anthrax letters investigation)
    and future investigations, including overseas environmental samples, for possible
    additional studies. (Finding 6.10)”

    ANTHRAX AND AL QAEDA: THE INFILTRATION OF US BIODEFENSE
    http://www.blurb.com/bookstore/detail/1443811

    100+ graphics –
    http://www.anthraxandalqaeda.com

  6. DXer said

    Isn’t it a bummer when there was another copy of documents thought destroyed?

    Swiss men with CIA links face nuclear secrets trial

    By Tony Paterson
    Friday, 24 December 2010

    A judge yesterday called for the prosecution of three Swiss engineers suspected of smuggling nuclear weapons technology following allegations that the US pressured Switzerland to destroy incriminating evidence to conceal their work for the CIA.

    Swiss federal magistrate Andreas Mueller made his recommendations at the end of a six-year investigation into the activities of engineers Urs Tinner, his brother Marco and their father Friedrich, who were arrested in 2004 on suspicion of smuggling but later released. They said they had worked for the CIA since 2003 as informers.

    The three are suspected of supplying technology to a nuclear smuggling ring in Pakistan run by Abdul Qadeer Khan, a nuclear scientist reputed to be the “father” of Pakistan’s atomic bomb. Mr Khan, who now lives under government surveillance in Pakistan, is suspected of having aided Iran, Libya and North Korea with uranium enrichment programmes.

    The Tinners are alleged to have played a bizarre dual role as nuclear weapons smugglers who at the same time worked for the CIA as informers and banked on the agency’s protection. “There are many parts,” Mr Mueller said yesterday. “It’s like a puzzle and if you put the pieces together, you get the whole picture.”

    The Tinners claim to have helped supply the CIA with information about nuclear projects in Libya. They also admit to working for the Khan network and according to independent US reports they supplied the CIA with key information about its activities.

    But they claim not to have known that Mr Khan’s aim was to produce nuclear weapons and they deny having supplied him with the relevant technology.

    Allegations that the US had pressured Switzerland to bury the case against the Tinners surfaced in 2008, after the Swiss government ordered 100 pages of evidence against them to be shredded. Copies of the documents have since reappeared.

  7. DXer said

    In Ann Arbor, which of the prominent supporters of the Salafist-Jihadis did the former Zawahiri associate in Ann Arbor supplied virulent Ames by Bruce Ivins know?

  8. DXer said

    Dr. Assaad, the Coptic Christian who was the subject of a letter in early Fall 2001, says that the charges against his friend, Dr. Ivins, are part of a “vicious plot.” Who does he suspect is involved in the plot? Who does he think is responsible for the anthrax mailings?

    • DXer said

      The lifelong friends of Dr. Tarek Hamouda, supplied virulent Ames by Bruce Ivins, actively denounce their former medical school associate Ayman Zawahiri as a fanatic – one serving as President of CAIR-St. Louis and the other as author of INSIDE JIHAD. Who do they think is responsible for the anthrax mailings? Who does Dr. Hamouda think is responsible? Did “Tawfiq”, Tarek or Khalid know Anwar Awlaki? Did Khalid, the St. Louis MD, know the St. Louis fellow who bought Ayman Zawahiri’s satellite phone?

  9. DXer said

    Will WikiLeaks unravel the American ‘secret government’?

    http://www.ibtimes.com/articles/86057/20101126/wikileaks-secret-documents-us-state-department-julian-assange-manning-iraq-afghanistan-cia-jfk-kenne.htm
    Researchers have often pointed out the stark contrast between nation states’ declared policies — and the means to achieve them — and what actually transpires on the ground. The inner workings, the dark secrets and shady deals never see the light of day until they may be declassified years later, severely undermining democratic values of truth and transparency.

    Now WikiLeaks is out to run a knife through a mountain of classified documents revealing how the proverbial ‘secret government’ works its way through cluttered diplomatic channels. And that certainly could be embarrassing to lots of people in many capitals, more so in Washington.

    The Pentagon has already warned the U.S. Senate and House Armed Services Committees that the leaks will “touch on an enormous range of very sensitive foreign policy issues.” “We anticipate that the release could negatively impact U.S. foreign relations,” Assistant Secretary for Legislative Affairs Elizabeth King said in an e-mail to the defense committees.

    ***

    That the imperatives of running a ‘national security state’, which was envisioned in 1947, led successive governments and secret agencies like the Central Intelligence Agency (CIA) to carry out hundreds of covert operations across the globe is quite a banal piece of information. Documents declassified dozens of years after the events have shown daring, ruthless and diplomatically unjustifiable actions undertaken by the government and secret agencies in the past.

    Therefore it’s not puzzling that the State Department is harried over the impending revelations about more recent undercover maneuvers of the government and its agencies in various parts of the world. That could seriously undermine the success of future operations and destroy the trust of allies, though a vast majority of people, including Americans, welcome the WikiLeaks route of forcing transparency in international dealing of governments.

    “The apparatus of the National Security State, largely established in the National Security Act of 1947, laid the foundations for the extension of American hegemony around the globe. In short, the Act laid the foundations for the apparatus of the American Empire. The National Security Act created the National Security Council (NSC) and position of National Security Adviser, as well as the Joint Chiefs of Staff (JSC) as the Pentagon high command of military leaders, and of course, the CIA,” writes Andrew Gavin Marshall in an article in the website of the Centre for Research on Globalization, a Montreal-based independent research and media organization.

  10. DXer said

    What happened to the second slant and frozen tissue material of the original Ames material sent USAMRIID from Texas?

    By email dated January 29, 2006 — produced yesterday in response to a September 2008 request by NYT Scott Shane, Dr. Ivins writes:

    “When we started getting material (Ames) ready for the FBI repository, I thought that there had been more than one slant that ___ had received of the “Ames” strain back in the ealry 1980s.”

    (He would be referring to Greg Knudsen).

    Dr. Ivins continues:

    “I was recently going through some information that he had sent us in early 2002, and I found the sheet that I scanned (enclosed). Although we could account for 1 slant during our inventory, apparently there were TWO slants sent, as well as tissue material. I remember seeing both the tissue material (in the -70 freezer in ___) and the second slant, and to my knowledge, they weren’t disposed of. Do you have any idea what may have happened to either the tissue or the other “Original” Ames slant?

    Thanks for the information.”

    I obtained a copy of the correspondence from Texas from an ISU microbiology professor (JD) who had been faxed a copy (after the mailings) by Dr. Knudsen when folks were considering access to Ames. The fax line on top of the page indicates where GK had gone.

    Who is responsible for delaying 2 years in delaying production of this January 26, 2006 email? USAMMED’s John P? The Colonel? The Commander? DOJ? FBI? And who is responsible for USAMRIID’s failure to provide the enclosed scanned page attached to Dr. Ivins’ email?

    Where does the buck stop?

    About 7 years ago my friend Marcia, who has posted on this board, called the scientist who actually prepared the package in Texas for mailing. He had retired. She reported at the time that he said he had not been interviewed by the FBI.

    Will USAMRIID owe punitive damages in civil litigation under the case law described in the graphic above for spoliation of evidence?

  11. DXer said

    USAMRIID has now produced two additional batches of emails (#64 and #65).

    As Dr. Ivins said on October 11, 2005, “Does it sound as good as a chewy chocolate brownie with fudge sauce drizzled all over it?”

    The Infiltration of US Biodefense: Anthrax and Al Qaeda (June 29, 2010)
    http://www.blurb.com/books/1443811

    http://www.newanthraxandalqaeda.com

  12. DXer said

    Subject: Millions of documents from over 350k federal court cases now freely available

    Princeton University’s Center for Information Technology Policy, working with the Internet Archive and volunteers has launched RECAP, a project to make US Federal Court Documents available for no cost to the public.

    RECAP is a Firefox Internet browser extension that allows users of the PACER to get free copies of documents they would normally pay for when the Archive has a copy, and if it is not available to then automatically donate the documents after they purchase them from PACER for future users. Therefore the repository on the Internet Archive grows as people use the PACER system with this plug-in. We are currently getting more than one document a minute and some large holdings are being uploaded. We hope that the government will eventually put all of these documents in an open archive, but until then this repository will grow with use.

    We find this an exciting project in that it is taking public information and automatically making a second archive of these materials as they are used. This may be a first for doing this kind of automatic archiving system, and hope this could become a model for preserving public domain collections. Technically, the Archive is using its new S3-like interface to make automated uploads easy.

    PACER, (Public Access to Court Electronic Records) provides on-line access to U.S. Appellate, District, and Bankruptcy court records and documents. Although it is available to the general public, it is difficult for non-lawyers to use, and users must pay significant fees for the documents they request. RECAP enhances Pacer user experience and simultaneously contributes these documents to Internet Archive to make available to the public. RECAP users are also alerted when a document they are searching for is already available from this repository. Since its August launch, RECAP continues to prompt interest from the legal profession and to use the capabilities of the web to increase government transparency.

    http://www.newanthraxandalqaeda.com

  13. DXer said

    washington times –

    Career official walks thin line

    ***

    ” the devil is in the details, and continued enforcement of any post-government restrictions is required,” he said. “Avoiding all conflicts, including the appearance of a conflict, is essential considering the government’s forthcoming procurement of the next anthrax …

    http://67.199.108.44

  14. DXer said

    Comment: Tiresias … rain from heaven. Who needs ham radio numbers when there’s you tube. Who needs portable nuclear device when there is a total lack of biosecurity and common sense in the United States. Where’s Harry when you need him.

    Anwar al-Awlaki: MI5 warns of the al-Qaeda preacher targeting Britain

    Young British Muslims are being groomed to carry out terrorist attacks in this country by Anwar al-Awlaki, a radical al-Qaeda preacher based in the Middle East, it can be disclosed.

    By Duncan Gardham and Con Coughlin
    Published: 10:12PM BST 11 Jun 2010

    Anwar al-Awlaki has ‘cemented his position as one of the leading English-speaking jihadi ideologues’ Photo: AP
    The security services fear that a new generation of British extremists is being radicalised by Awlaki, who recruited the Detroit plane bomber. They are concerned that Awlaki’s followers could unleash a wave of easily planned guerrilla-style terrorist attacks, similar to the massacre in Mumbai.

    Such small-scale attacks could be carried out cheaply by individuals with little terrorist training and without the need for the support of a large organisation.

    The British security services have become so worried about Awlaki’s rising influence that they have alerted ministers to their fears.
    He is now regarded as one of the world’s most wanted terrorists.

    A briefing paper, seen by The Daily Telegraph, has been circulated within government, warning that Awlaki has now “cemented his position as one of the leading English-speaking jihadi ideologues”. His growing influence was one of the factors that led to a raised terrorism alert level in Britain earlier this year.

    Awlaki, who was born in America, but is of Yemeni descent, is in hiding in Yemen, where he also spent his teenage years. He has become the foremost influence on young radical Muslims across the world through his English language sermons delivered over the internet.

    He said in a statement in March: “Isn’t it ironic that the two capitals of the war against Islam, Washington DC and London, have also become among the centres of Western Jihad [holy war]. Jihad is becoming as American as apple pie and as British as afternoon tea.”

    His growing influence has also attracted young Britons to Yemen seeking to train as suicide bombers. It can be disclosed that at least one British Muslim has volunteered to be a suicide bomber in recent months after contacting Awlaki. MI5 and the police fear there could be more.

    Authorities have rounded up Westerners studying at Arabic colleges in Sana’a, the capital, including at least two Britons who were later released.

    Awlaki built up a base of extremist followers while living in London for two years until 2004, giving lectures at mosques, universities and closed study circles across the country, sources say.

    He developed a following among terrorists and terrorist groomers, including the July 7 and July 21 bombers and the leader of the transatlantic airline bombers, it can also be disclosed. CDs of his sermons were found in the Iqra bookshop in Leeds — where the July 7 bombers held meetings — when it was raided in July 2005.

    Mohammed Hamid, the recruiter of the failed July 21 bombers, attended his sermons, sources have told The Daily Telegraph.

    His lectures were also found among the material seized from Aabid Hussain Khan, an international terrorist recruiter, from Bradford, West Yorkshire, in June 2006.

    Abdulla Ahmed Ali, the leader of the trans-Atlantic airline bombers arrested in August 2006, spoke of his admiration for Awlaki during his trial. Meanwhile, Rizwan Ditta, who sold terrorist texts in Halifax, West Yorkshire, had material from Awlaki on a computer at his home when he was arrested in December 2006.

    Major Nidal Hasan, who killed 13 people at the Fort Hood military base in Texas in November, had asked for Awlaki’s advice in emails about a suicide attack. Umar Farouq Abdulmutallab, the failed Detroit bomber, contacted Awlaki over the internet. Awlaki put him in touch with al-Qaeda in Yemen, investigators say. Faisal Shahzad, who tried to set off a car bomb in Times Square, New York, last month, has told investigators he was also influenced by the preacher.

    Awlaki has become such a significant threat that the SAS has been deployed to Yemen in a bid to hunt him down. President Obama has also signed orders allowing drone attacks and special forces ground attacks in pursuit of Awlaki, who holds US citizenship.

    In the past few weeks al-Qaeda has released a 45-minute interview with him which has become a hit on YouTube. In the interview Awlaki appeared to admit involvement in 14 plots in the US, Canada and Britain.

    A government analysis of YouTube last year found that Awlaki had 1,910 videos on the site, one of which had been viewed 164,420 times.

  15. DXer said

    The armchair analyst: Ed Lake has spent nine years tracking the anthrax investigation
    http://www.journaltimes.com/whatsyourstory/article_84a809ac-74e5-11df-a708-001cc4c03286.html

    • DXer said

      Ed Lake thinks that it is 99% certain that a child wrote the letters. See the featured section on his webpage. His argument is silly. He relies on ad hominem argument and labels rather than sound critical reasoning.

      He thought and argued for 6 months that the genetics narrowed things to Dr. Bruce Ivins when everyone else understood that it limited things to the hundreds — just at Ft. Detrick alone who had access to the flask and samples in the unlocked refrigerators.

      For the uploaded documents and sound analysis by professionals, go to either Dr. Meryl Nass’ blog or this blog by the former President of the Public Health Research Institute Lew Weinstein or the blog by former State Department analyst Ken Dillon.

      Anthrax and Al Qaeda: Infiltration of US Biodefense (May 27, 2010; fully previewable)
      http://www.blurb.com/books/1385387

  16. DXer said

    On September 13, 2004, Dr. Ivins wrote:

    “The animal research protocols can be obtained from _________. I have enclosed information requested concerning materials my lab needs to produce anthrax spores.

    __________ would probably be the best source for information pertaining to the 1997 USAMRIID ____ spore contract. I have saved files relating to the 2001-2004 _____ spore contract that DOJ/FBI can get. These are currently archived in my email files.”

  17. DXer said

    By email dated September 7, 2004, Dr. Ivins explains:

    “I can’t save batches of emails files onto a disc. I would have to do it email by email,, saving a total of 530 emails. If the FBI wants to send somebody here to download them, fine, but unless I simply stop doing any work here, I don’t have the time to individually download these files.

    I also told you that I have over 1200 archived email files with teh word, “Ames” in them. Plus I have a lot of information on diskettes. If the FBI wants to go through them, fine, but if I have to do so, I’ll have to stop work.

    Please advise on what course of action to take.

    Bruce Ivins

    Anthrax and Al Qaeda: Infiltration of US Biodefense (May 27, 2010; fully previewable)
    http://www.blurb.com/books/1385387

  18. DXer said

    Spoliation of Electronic Evidence: This Way Be Dragons
    by Sharon D. Nelson and John W. Simek
    June 2005

    Ancient mariners navigated by maps that sometimes depicted dragons in uncharted waters, occasionally even bearing the legend: “This way be dragons.” Within the legal profession, spoliation of electronic evidence has constituted murky, dangerous and uncharted waters, and it is no exaggeration at all to say, “This way be dragons.”

    Then came Zubulake V, and the waters became clearer – but more fearsome. The fifth decision in Zubulake v. UBS Warburg LLC et al (2004 WL 1620866 S.D.N.Y.) came down on July 20, 2004 and its effects have rippled throughout the legal profession. In an otherwise routine employment discrimination case, plaintiff Laura Zubulake moved to sanction UBS Warburg for its failure to produce relevant information and for its tardy production of evidence.

    Warburg’s counsel had issued a litigation hold after Zubulake filed EEOC charges and had orally transmitted preservation of evidence instructions, but failed to mention backup tapes. A visibly disgruntled Judge Scheindlin noted that some employees deleted e-mails in spite of the instructions and others did not produce relevant information to counsel. The judge acknowledged that this was not the fault of the defense attorneys. However, she chided the attorneys for failure to request retained information from one key employee and failure to give litigation hold instructions to another. She admonished the attorneys for failure to talk with another employee about how she maintained her computer files. Judge Scheindlin was clearly irked by counsel’s failure to safeguard backup tapes that might have contained some of the deleted e-mail, thereby mitigating the damage done by the client’s e-mail deletions. Her decision provides a detailed list of the client and attorney shortcomings. Worse yet, evidence eventually recovered from the back-up tapes (and some had inexplicably “gone missing”) clearly showed that relevant evidence favorable to the plaintiff had been destroyed.

    As the judge noted wryly, the famous line from Cool Hand Luke was right on target: “What we’ve got here is a failure to communicate.” The result? UBS Warburg was ordered to pay the costs of plaintiff’s motion including attorneys’ fees, as well as to pay the costs of any other depositions required by the late production of the e-mails. Most distressing was the imposition of the dreaded “adverse inference instruction,” which Judge Scheindlin announced she would give to the jury. The judge considered but declined to award sanctions against the attorneys, citing the specific set of facts and the dearth of judicial direction in this area. However, she laid out a list of counsel responsibilities intended to give future guidance and made it clear that lawyers might be subject to sanction if they did not abide by them. The guidelines say that counsel must:

    1. actively monitor compliance so that all sources of discoverable information are identified and searched, noting that it is NOT sufficient to advise the client of a litigation hold and then expect the client to retain, identify and produce the relevant evidence;
    2. become familiar with the client’s document retention policies and computing infrastructure, speaking with the client’s key IT personnel to do so;
    3. communicate with all key players involved in litigation, inquiring as to how and where they store their information, and advising them of their preservation of evidence obligations;
    4. ensure that a “litigation hold” is implemented whenever litigation is reasonably anticipated and periodically reissue the notice;
    5. communicate directly with key players; and
    6. instruct all employees to produce responsive electronic files and ensure that relevant backup tapes or other archival media are safely stored.

    If some of this seems onerous, the Judge was careful to point out that the actions of counsel must be reasonable, noting that counsel cannot be obligated to monitor their client like a parent watching a child. Still, the judge observed that counsel is more aware of the legal duties surrounding evidence preservation and production, and therefore held to a high standard of involvement and monitoring.

    As a sidebar note, since Zubulake V came down, the American Bar Association’s standards have been revised to offer an updated and more pragmatic approach to preservation of evidence and production obligations. The amendments may be found at http://www.abanet.org/litigation/documents/home.html

    Will Zubulake’s clear reasoning and explicit standards be heeded? Commentators, the authors included, believe it will. Judges are showing increasing intolerance for spoliation, whether it is the open mockery of the system displayed by Arthur Andersen and Enron or the more subtle spoliation that comes from lassitude and a failure to energetically get (and keep) a handle on the preservation of electronic evidence. Hefty fines have become the norm (fines exceeding $1,000,000 are no longer rare), and the issuance of adverse inference instructions is also on the rise.

    Zubulake continues to spawn precedent-setting opinions with which all attorneys should be familiar. Zubulake V represents the first time that a court has set forth such explicit guidelines for attorneys managing the preservation and production of electronic evidence. The betting money is that courts will largely fall in like dominoes behind the principles of Zubulake with only minor modifications. If this is true, the waters will no longer be uncharted and navigation by legal counsel must be considerably more zealous and comprehensive than it has been in the past. If you ignore Zubulake V, you risk being scorched by a dragon’s breath as you flounder in perilous waters!

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