HILLARY’S LAWYERS, HILLARY’S EMAILS, and PROBLEMS OF E-DISCOVERY
Michael Sean Quinn*
Before producing her emails to the State Department in 2014, her lawyers sorted through thousands of emails she had in her possession. Lets say the number was 60,000, plus or minus. They concluded that a large fraction were “personal,” and deleted them. The FBI investigated the matter, and determined that there was no intentional misconduct by any of these lawyers.
For one thing, the lawyers did not actually read the whole emails. Instead, they read only the headers. However, they also used search terms to review of the 60,000.
The FBI concluded that the the selected search terms were insufficient to guarantee that all work-related emails were recognized and produced. Indeed, it was highly likely that they missed some work-related emails since the FBI found them in the mailboxes of other officials or in the slack space of a server. (A “slack space” is a unused space of a server.)
At the same time, the FBI indicated that the way the lawyers deleted all the email not returned to State, and cleaned their devices precluded complete forensic investigation.
During its investigation, however, the FBI interviewed a number of these lawyers and concluded that there was no intentional misconduct.
I have no doubt about any of this. I am inclined to give Hillary the benefit of the doubt and hypothesize that she did not hide secrets in the personal stack somehow and have her Ls throw them out somehow. At the same time, I doubt that was a good decision.
My question, therefore, is different from the usual ones. The Ls Hillary was using were experienced and wise. They knew that the destruction of the emails conceived of as personal would cause a political firestorm, as–of course–it has.
Therefore, if they acted competently, they advised Hillary of the dangers of disgrace, etc., which would be coming. I wonder it they did this and did it well. See ABA Model Rules  and Rule 1.1. It would be interesting to see the legal memorandum she was sent.
*Michael Sean Quinn, Ph.D., J.D.
The Law Firm of Michael Sean Quinn
1300 West Lynn Street, Suite 208
Originally posted on 07/09/2016 @ 9:20 pm