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Psystar Case Reveals Poor Email Archiving At Apple
Posted by
timothy
on Sun Nov 23, 2008 09:03 PM
from the let-me-check-the-round-file dept.
from the let-me-check-the-round-file dept.
Ian Lamont writes "Buried in the court filings of the recently concluded Psystar antitrust suit against Apple is a document that discussed Apple's corporate policy regarding employee email. Apparently, Apple has no company-wide policy for archiving, saving, or deleting email. This could potentially run afoul of e-discovery requirements, which have tripped up other companies that have been unable to produce emails and other electronic files in court. A lawyer quoted in the article (but not involved in the case) called Apple's retention policy 'negligent.' However, the issue did not help Psystar's lawsuit against Apple — a judge dismissed the case earlier this week."
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Psystar Antitrust Claim Against Apple Dismissed 256 comments
CNet has a report that a federal judge has dismissed Psystar's antitrust suit against Apple. Observers had said that the counter-suit embodied the Mac clone-maker's best chance of prevailing and staying in business. We've been following Psystar and the dueling lawsuits since the beginning.
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If Litigation is required. (Score:5, Funny)
From TFA:
The thing here is that litigation is always anticipated at Apple - if they're not currently suing someone, its because they're getting ready to sue. (or the legal team are on holiday [hawaiishar...unters.com] [legal team pictured on the right hand side of that photo])
The other point worth noting here is that an electronic document retention policy is only a good thing to have if you're confident your employees are acting ethically (or at least unaware of any breaches).
Re:If Litigation is required. (Score:4, Insightful)
It's probably more to say "if you think you will get busted you're not allowed to start removing things", not "you can't remove anything because some day in a time far far away someone may want to look you up."
Parent
LOL! Step 1 = read article, Step 2 = comment (Score:5, Interesting)
An e-discovery lawyer, who asked not to be named because his employer (a firm you probably have heard of) doesn't want him speaking to the press, explained the basic legal requirements surrounding email and document retention to The Standard. "If litigation is anticipated, the party has a duty to preserve potentially relevant documents," he said.
Playing safe does indeed indicate good record-keeping. I'm still not a lawyer, but that seems like reasonable enough legal advice. However, he has more to say.
"An employee retention program with no organization or coordination is effectively incapable of compliance," he continued, "barring an act of God, or luck akin to picking every game right in an NCAA pool. Apple's retention policy is negligent."
Do you mean "negligent" in the legal sense, or the colloquial? Because, you know, now that you're being cited as an e-discovery lawyer, the inclination will be to assume that everything you say is your legal opinion or best counsel based on the sum of relevant statute and precedent.
Consider this scenario: Employees could have emails from five years ago that become "potentially relevant", but because there was no policy in place regarding e-documents, those records could easily become destroyed -- making it potentially impossible for a plaintiff to make a case from internal documents.
That could only be a problem under an ex post facto law, in my opinion. I am still not a lawyer, so if I'm right [meaning his advice is not so hot], we now have a good idea why "his employer (a firm you probably have heard of) doesn't want him speaking to the press."
However, Apple claims in the Psystar document that its policy is fine because once the company anticipated litigation:
[Apple] identified a group of employees who could potentially have documents relevant to the issues reasonably evident in this action. Apple then provided those individuals with a document retention notice which included a request for the retention of any relevant documents.
Psystar's antitrust claim has been dismissed, but Apple is currently involved in many other cases. Apple's weak e-discovery practices could very well come back to haunt the company.
That is of course possible, but "could very well" normally implies high probability, and that is not supported by the facts given in this article. Obviously, he has a product to sell, but I would have come away with a more favorable impression of e-discovery software if he had said something more like, "if the evidence against you is as weak as the evidence against Apple in this case, you don't need a data retention policy any better than Apple's. However," I would continue if I was trying to sell some e-discovery software, "in case of better-organized litigation against you than this case, a more comprehensive data retention policy might be in your best interest." See, instead of making my sales pitch on a case that, taken on its own, indicates that my product is unimportant, I would acknowledge that my product was not important in this case, but suggest that it is not wise to assume that every case will be so easy. I think my approach appeals less to the customer's fear, and more to the careful consideration that will need to be evident in an approved purchase request.
Parent
Re: (Score:2)
Or... they're being sued. It's practically a rare day these days when Apple isn't being sued by someone.
It's a wonder Apple can release product considering how much the probably spend on legal...
Re: (Score:3, Funny)
Re:If Litigation is required. (Score:5, Informative)
Erm? Really? You cannot be serious?
You don't recall Apple suing one of its fanbase [thecrimson.com] (a student & lifelong fan), a web design school [pulse2.com] (who mostly used Apple's products), New York [sys-con.com] (for daring to use an apple in a environmental awareness campaign) and of course Psystar [tuaw.com] (attempting to resell OS X).
I could go on & on. Sure. Plenty of people sue Apple (just like any other big tech corp), but Apple's penchant for pulling out the legal guns against small operators (and its fanbase) makes it stand alone in the tech crowd.
Parent
Re: (Score:3, Informative)
They have a logo that is very similar to apple's trademarked logo, they deal with computer related tasks/services/education, they use apple hardware... it is quite likely someone may mistake that the company is somehow tied to apple (an official apple web design school or something of the sort). Whether it is "morally" wrong for them to sue this compa
in the year 2000 (Score:3, Funny)
Re:in the year 2000 (Score:5, Funny)
MySpace: you received a friend request from AplLawyrBabe81
HackintoshDood: sweet, she looks pretty hot.
MySpace: you have a chat request from AplLawyrBabe81.
HackintoshDood: awesome!
AplLawyrBabe81: a/s/l?
HackintoshDood: 21/m/san jose, u?
AplLawyrBabe81: kekeke
HackintoshDood: i rly like ur pics. you're hot.
AplLawyrBabe81: kekeke, thanks.
AplLawyrBabe81: ur profile says u r Matt Anderson. is that rly ur name?
HackintoshDood: yep, that's me =P
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AplLawyrBabe81: ur being sued by Apple for copyright infringement.
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Parent
e-dicovery? (Score:5, Interesting)
The fear of fines and other legal sanctions has resulted in many companies instituting strict "e-discovery" retention policies, and has helped give rise to a new class of enterprise-class storage and indexing tools.
I think "iDiscovery" is a much catchier name...
Joking aside, I kind of wonder about the practicality of requiring companies to retain their own documents in case of possible litigation against them. Won't this simply encourage people to use alternate means for any sort of confidential communications? Also, what proof is there of a lack of tampering? I'm not saying Apple is guilty of this, but it does cross my mind in a general sense. It seems only natural that executives will be more cautious of saying anything even remotely incriminating via e-mail. More face-to-face meetings in the future, I guess.
Re: (Score:2)
I think it could get a greater sliding scale effect. Require Emails for endless archives, then IM's then further recording and archiving all phone calls... It is out of hand, and worse almost every politician in power use to be a lawyer. So you can't even cry for them for some reasoning that sometimes the Lawyers jobs will need to be tougher and you can't always have the company share all its information to everybody. And shouldn't be required to.
Re:e-dicovery? (Score:5, Insightful)
Parent
Re:e-dicovery? (Score:5, Interesting)
I kind of wonder about the practicality of requiring companies to retain their own documents in case of possible litigation against them.
There is no general requirement. Many companies have document destruction policies - for my company we automatically delete all email older than 90 days.
Some records have to be kept - financial records, taxation, etc. Invention records for patents, and so on. If you are in the financial industry the SEC requires 5 years for everything. If you are in a lawsuit the judge might order you to stop destroying stuff - I think Prudential got hit with a fine because nobody told their IT department to turn off their automating pruning process.
Parent
Re:e-dicovery? (Score:4, Interesting)
Actually, there is a general requirement - although it's a special case, kind of. It's called FRCP [cornell.edu] - Federal Rules of Civil Procedure. So, it's a special case in that it only applies when you show up in Federal court. But it's a general requirement in that any case that gets ruled against can be appealed, and after enough appeals, you end up in Federal court. The Cornell link also points out that a lot of state courts are accepting the FRCP rules as reasonable for their proceedings.
I've been told by our legal counsel the same thing mentioned in TFA: "If litigation is anticipated, the party has a duty to preserve potentially relevant documents". The obvious case is when someone's death (due to negligence) is involved. The less obvious case is when the boss starts an affair with one of the administrative assistants. Do you keep the love letters? Is litigation anticipated? What if the boss has authority over job promotions?
Problem 1 is that the automated "we delete after 90 days" system may not have a provision for "well, delete all except foo and bar". (And, BTW, foo might take five years to get to court, and bar might never). Problem 2 is that it's probably not reasonable to expect end users to be able to classify keepers from trash. If they weren't love letters, but rather evidence of sexual harassment, should the victim have been allowed to keep them? If corporate policy says no....
I don't know if this was the same case you were thinking of, but Morgan Stanley agreed to pay $15 million [computerworld.com] in fines for its failure to retain e-mail messages.
Parent
Re:e-dicovery? (Score:5, Interesting)
Won't this simply encourage people to use alternate means for any sort of confidential communications?
YES.
Two weeks ago, where I work, there was a new training module that we had to complete. One of the topics was email and discovery. We are specifically prohibited from speculating about anything in email because it can be a part of discovery. If we have concerns, we are to walk to the person's office and discuss it with them in person.
LK
Parent
Re: (Score:3, Insightful)
Bah, don't worry about the executives. They already have a entire language of obfusciation and everybody else just posts the dirt to their MySpace blog.
It's not that I'm worried about executives. It just feels both pointless and overly intrusive to me, which is a bad sign for any government policy. From there, it seems a small step to require Internet providers or search engines to start logging the same sort of data. It doesn't really seem all that far-fetched. [npr.org]
Re: (Score:2)
well, corporations shouldn't even have rights as an individual. however, if corporate entities are going to be given rights, and in fact more rights/power than regular citizens, then they should be held to higher legal & moral standards and also subjected to greater scrutiny (i feel the same should be applied to politicians, law enforcement, and others in positions of power).
ordinary individuals have to file & report all of their financial earnings, and the court can issue warrants to search and sei
Re: (Score:2)
corporations shouldn't even have rights as an individual
Yes and no. Should they have the right to free speech? Yes, with the same limits as an individual. The right to bear arms? No, I don't think Omnicorp needs guns. The right deny boarding of government troops? Yes, I sure don't want weekend warriors taking over my cubicle.
Re: (Score:2, Insightful)
why should a corporation have the right to free speech? or perhaps a better question might be, why would a corporation need the right to free speech?
a person's right to free speech may be encroached if they, say, create a film that offends some special interest groups or portrays a powerful corporation in a negative light. a lawsuit might be filed against the filmmaker in an attempt to silence him. in this case it would be a matter of free speech.
now, how would the issue of free speech ever arise regarding
Re: (Score:2)
so if people are subjected to all of these encroachments of privacy and civil liberties, then why shouldn't corporations be forced to keep records that can assist legal investigations? if anything people should have more of a right to privacy than a corporation, since a corporation is just a commercial entity, not a human-being with natural rights.
I'm not arguing against it on the basis of civil liberties. I'm arguing on the basis that its counter-productive and unnecessary. If someone is doing something illicit, don't you think they'll be just as likely to try to cover their tracks? That leaves the burden of compliance on those companies that *are* doing the right thing.
Keep in mind that not all "corporations" are giant conglomerates. Many smallish businesses are also "corporations", just not publicly traded. What do you feel would be the size
Re: (Score:2)
As long as you delete it before you are served you are fine.
email is for communication... not documentation (Score:5, Interesting)
Now, some IANAL (or IAAL) tell me why I am completely wrong.
Re:email is for communication... not documentation (Score:4, Interesting)
The financial industry requires all that. Where I work (broker/dealer and investment management firm) EVERYTHING is recorded. E-mail, phone calls, meetings, etc. IM and the like are forbidden. We even get copies of every fax sent/received and paper letter sent by investment advisers. All of it. Yes, it is a royal pain.
Parent
Re: (Score:3, Insightful)
Typical e-mail systems treat messages as messages, and not documents. Its made evident by the email address itself: someone@domain.net -- not alot of meta-data in there. Just a person at a place.
what blows me away is when companies that do make an effort to archive e-mail messages, insist that the operation be performed at the client, via CC or message forwarding (the cost savings technique). Sounds ripe for abuse if you ask me.
Lets face it: e-mail is too big to fail! Therefore (Satan get behind me) we must
Re: (Score:2)
Yes, it is a royal pain.
Well, a marketing company or something else like that can't exactly torpedo the economy the way financial organizations can.
Lockheed Martin acts stupid, maybe they go bankrupt or get acquired. A financial company acts stupid, and... well, the last few weeks are evidence enough as to what happens.
Re:email is for communication... not documentation (Score:5, Insightful)
But that doesn't equate to legal requirements for a company to retain ALL email.
No it doesn't. But there are two issues with email. First is that if you don't have a standard policy for retention/destruction of email (or network share backups or whatever), it opens you up to allegations that you destroyed evidence after a lawsuit was filed. If people can delete things at any time, it makes it hard to show if it was coincidence that your VP just happened to delete all that relevant stuff after a suit was filed or not. With a standard policy, if everyone complies, then this matter is much more cut and dry.
Second is Sarbanes-Oxley compliance. I know a lot of companies have banned external instant messenging because of retention concerns related to Sarbanes-Oxley (since you can't easily log AIM and other IM discussions). I'm a bit surprised that Apple hasn't got policies in place given their issues with improper options in the past. Similar laws, I guess they didn't take the scandal very seriously.
Parent
Re: (Score:3, Insightful)
"Should" be used? That may be the best policy for limiting discovery in lawsuits, but it would seriously damage the operation of the business. I can't immediately resolve an issue emailed to me most of the time, and I rely on saving emails with important information for later use. I'd say these are pretty common ways that people use email.
You want to mitigate legal risk, not necessarily eliminate it.
Re:email is for communication... not documentation (Score:4, Informative)
Let me put it this way - I know of a largeish piece of corporate litigation that turned almost entirely on a Christmas card.
Broadly speaking, anything that is recorded and is able to be read/interpreted/played back/whatever is a "document" for legal purposes and is discoverable if it is relevant to the issues in the case (or whatever your local rules are).
A conversation isn't a document as there is no persistent record of it. That is why you have "pens up" meetings and why some people will never put anything more informative in an email than "come see me".
However, if you do make any record of that conversation - be it five words on a napkin, a detailed minute of the meeting or an audio recording, then that becomes discoverable (provided it is relevant). If you are given a handout of powerpoint slides at a meeting and you make notes on it then that handout becomes a wholly distinct, individually discoverable "document" from a blank printout of the slides.
In most places it is considered contempt of court to destroy a document that is discoverable in actual or reasonably anticipated litigation.
And yes, IAAL.
Parent
Re:email is for communication... not documentation (Score:4, Insightful)
Parent
Re: (Score:2)
What it comes down to is the definition of a "record". If you and your boss make a decision over the phone, and it's followed up with an email, then that is the record of the decision. In the Bad Old Day, a record was paper. The transition to email doesn't get rid of the need for records - it just changed the form.
I work in government, and we have to live under 'open meeting rules'. In other words, elected officials have to be careful not to discuss items with each other (and thus be at risk for the accusat
Retention policy? (Score:5, Funny)
.
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Yeah.. (Score:2)
Re: (Score:2)
People cannot expect to act responsibly unless there is a policy explicitly requesting such.
Re: (Score:3, Funny)
Time Machine? (Score:5, Funny)
Re: (Score:2, Informative)
That's actually hilarious that you mention that, as I am storing about a half-decade's worth of e-mails using apple products and hardware. Wouldn't call it especially secure or safe, but it's there and it's intuitive to use.
Why wouldn't they at least use the office as a place to field test the product?
Re:Time Machine? (Score:4, Funny)
Something that Just Works.
Perhaps you've heard of Mobile Me? It's a wonder they have any e-mail.
Parent
Sarbanes-Oxley (Score:3, Interesting)
Re: (Score:3, Interesting)
Yes, SOX section 802 can bring criminal penalties if audit records (which can include email messages) are not maintained. It sounds like Apple may not be SOX compliant.
Policy? Is there a rule for this? (Score:2)
I've already been part of an e-discovery action for a lawsuit - which we eventually won - and can't imagine what might happen next.
Nevertheless - I follow the GTG philosophy. If it takes less than 60 seconds to do, I delete it. I also delete my deleted files every time I close for the day.
Re: (Score:2)
Re: (Score:2)
If I retain stuff and something - however unlikely - is found to be damaging in a future lawsuit then "m screwed.
Now, If I do what Oracle (IIRC) did and start deleting AFTER a discovery request is made, then I'm guilty of obstruction.
I figure just delete before hand.
Re: (Score:2)
I double dog dare you... (Score:5, Funny)
Just remember, Steve has eye lasers, and they are powered by pure disgust.
Good reason not to even use email (Score:3, Insightful)
Vague guidelines are good (Score:2, Interesting)
Our legal people won't respond to IT requests such as 'how long should we keep backups' The problem being that if they give an answer it can be used against the company.
Not having a guideline at all is the best way to circumvent that. Of course they do have a guideline for employees to delete all emails that are no longer pertinent to their jobs, but those guidelines are there for the same reason. It's all about deniability.
So I'd call this smart, not negligent.
Why keep emails? (Score:3, Insightful)
Why would Apple bother to keep emails when they already know that the risk of the email being used against them is far worse than the penalty for not keeping them.
Re: (Score:2)
Especially when not properly archiving that email can take a bite out of your corporate image! Oh wait...
Re: (Score:2)
Now would be the time to invest in Sapho production. Biological storage will be the way of the future.
If there is a future, I wonder if the archeologists will be able to determine it was the lawyers that caused all forms of permanent information to disappear.