The recent e-book price fixing lawsuit brought by the U.S. Department of Justice against Apple and individual book publishers includes allegations that the publishers recognized the “illicit nature” of their communications because they “took steps to conceal their communications with one another, including instructions to ‘double delete’ email…”

Conspiracy allegations aside, DOJ’s cloak-and-dagger allegations belie the fact that it is perfectly fine to double-delete email if there is no duty to preserve it — and the lawsuit does not claim that such a duty existed here.  And before you embrace DOJ’s view that double deletion is nefarious, you may want to look in the mirror.

Double deleting email can mean something as simple as deleting mail out of the inbox, then emptying the trash folder. Many people double-delete every day when they close out Outlook and answer “yes” to the prompt about deleting their emails.  And, in any event, many companies have moved to short retention periods for email so that it is purged from company servers (and may not live even on local hard drives) as soon as a few weeks after creation.

There are real and legitimate reasons for a business to delete emails when it’s not under a duty to preserve, starting with the need to control the accumulation of records that there is no reason to preserve.  Also, the architects of a possibly controversial but legally defensible business plan may not want to leave a record of how the plan evolved and the issues that they considered and perhaps rejected. Emails written in the throes of decision-making can be misconstrued and taken out of context when they are studied later.

But the issue becomes complicated if an investigator or opponent can establish that litigation was reasonably anticipated when information was double-deleted, or when a company did not suspend the automatic deletion of relevant information.  If double-deleting actually becomes a litigated issue of spoliation in the case, there will be a focus on whether the defendants anticipated litigation on the pricing model that is at issue in the case. For example, did the parties involve litigation counsel at that time? This is a highly fact intensive inquiry.

The Sedona Conference Commentary on Legal Holds suggests a non-exhaustive list of factors that a party should consider in evaluating whether litigation is reasonably anticipated:

  • The nature and specificity of the complaint or threat;
  • The party making the claim;
  • The business relationship between the accused and accusing parties;
  • Whether the threat is direct, implied, or inferred;
  • Whether the party making the claim is known to be aggressive or litigious;
  • Whether a party who could assert a claim is aware of the claim;
  • The strength, scope, or value of a known or reasonably anticipated claim;
  • Whether the company has learned of similar claims;
  • The experience of the industry, and;
  • Reputable press and/or industry coverage of the issue either directly pertaining to the client or of complaints brought against someone similarly situated in the industry.

While double-deletion may have a legitimate purpose, it is not a particularly effective way to hide information.  Double-deleted email – while not visible to the user – may still live on a hard drive until overwritten, and forensic tools are available to recover deleted email.  And an instruction to double-delete won’t serve the purpose of concealing sensitive communications if the deleted emails still exist on servers or backup tapes, and many times they do. It also won’t work if not all the emails are deleted — and in this case, the complaint quotes extensively from numerous emails the DOJ contends reflect a conspiracy, so it appears that at least some were preserved.

The complaint also does not say how the DOJ knew of the alleged double-deletion instruction.  Where a party can establish that there was a duty to preserve, information was deleted, but the instruction to delete remains, a jury will likely be instructed that it can infer that the emails were harmful.  And it is usually much easier for counsel to explain a bad document than to overcome a juror’s adverse inference about a missing document.

This post was republished by Law360 on its website and newsletters.