OPINION: Most Clinton Critics Are Missing The Point

Hillary Clinton’s self-maintenance of a personal email account for use in her capacity as a government official has raised questions about whether the State Department inadequately investigated the existence of official government business records or Clinton improperly failed to disclose the existence of the personal email account. But those questions miss the point. If circumstances similar to the Clinton email “situation” came to light in the course of private litigation, there would be hell to pay. Intentional disposal of information that was not even preserved is far more relevant than what was — or was not — disclosed.

Clinton also allegedly delayed disclosure of records from that same personal account. Both issues stem from requests made pursuant to the Freedom of Information Act as early as 2012.

There remains a salient issue that has seemingly been overlooked. How do our society’s critics keep missing the mark? The problem is not the use of a personal email account, but rather an issue of accountability.

It is possible that the State Department, Clinton and her aids did a perfect review of every single record on her personal email server before unilaterally deciding to delete tens of thousands of “personal” emails from that server, and then more recently, deleting any trace of electronic records that previously existed on that “personal” server. A simple assurance that all “relevant” communications had been printed and disclosed as required under FOIA and deemed appropriate by the State Department and/or Clinton (a distinction without a difference) is sufficient. Or is it?

Without offering an opinion as to who is accountable, the Federal Rules of Civil Procedure make clear that preservation obligations are independent of collection or disclosure obligations. In other words, whether or not those tens of thousands of communications that were unilaterally ordered to be deleted from Clinton’s personal/business/personal/business (you get the point) email account were at all relevant is itself what is irrelevant.

The majority of critics have ignored this, choosing to disregard legal principles of document retention and records management in favor of highlighting the largely irrelevant truism that Clinton used a private email account for government business. To the latter point — again — who cares? The criticism is misguided.

Consider the following scenario: A private company becomes subject to preservation obligations, and C-suite management communications are directly at issue. If the CEO uses a personal noncompany email address to conduct business affairs (regardless of whether permitted under company policy), that private email account obviously falls under the duty-to-preserve umbrella. Whether any of the personal communication in the CEO’s personal email account are actually discoverable and/or responsive and/or relevant does not matter. The company and the CEO are required to preserve the emails in the personal account. The logic is obvious — preservation is broader than collection, which is broader than disclosure.

The company and the CEO individually would take on quite a significant risk by unilaterally deciding to delete the emails contained in the personal account based on the notion of a “belief” or even (unilateral) “assurance” that those records are not responsive or relevant. Legal precedent demonstrates that the failure to preserve — even if records subject to preservation duties may be irrelevant and/or nonresponsive — establishes a basis for a spoliation motion. And if a litigant can demonstrate such evidence destruction — intentional or inadvertent — the targeted party may face significant monetary sanctions, evidence exclusion, an adverse inference jury instruction or other form of game-changing negative consequences.

So the real question is, should governmental agencies and their officials be held, de facto, to more lenient standards than private litigants, as appears to be the case in these circumstances?

Originally published in Law360 on April 5, 2015.

About The Author

Jason Bonk is an experienced litigator in the firm's New York office. He represents Fortune 500 companies along with middle-market businesses in a variety of high-stakes matters, including complex commercial cases involving contract claims as well as fiduciary and other equitable claims, class actions, white collar investigations, labor and employment disputes, and bankruptcy litigation. Prior to joining Cozen O'Connor, Jason spent most of his career at Weil, Gotshal & Manges, and practiced, most recently, at Kleinberg, Kaplan, Wolff and Cohen.

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