The controversy over the emails Hillary Clinton maintained on a personal server while Secretary of State recently obtained new legs with disclosure that fifteen emails produced by Sidney Blumenthal, a former Clinton aide, emails which included Clinton, were not produced by her. (See “State Department Says Hillary Clinton’s Email Disclosure Was Incomplete.”)
The controversy started when documents produced in connection with ongoing investigations concerning the attacks on the American embassy in Benghazi, Libya, reflected an absence of emails from any state department account for Hillary Clinton, but instead emails to and from her personal email account. After discussions between the State Department and Mrs. Clinton’s lawyers and staff, the latter turned over boxes of printed emails from her personal account, supposedly the ones pertaining to State Department business. The State Department then turned over those emails that pertained to Benghazi. (See “Hillary Clinton Asks State Department to Vet Emails for Release.”)
Later, other witnesses were served with subpoenas to produce their records pertaining to Benghazi. It appears that someone compared the emails produced by Blumenthal that included Clinton with Clinton’s own production and catalogued fifteen discrepancies.
Notably absent from the publicity firestorm that emerged from these discrepancies was any report that the fifteen emails not produced by Clinton meant anything. However, the very fact that some emails weren’t produced gave new life to a narrative that Mrs. Clinton is calculating and possibly not to be trusted.
Similarly, in business cases, the apparent suppression of information can become more important, and damaging, than its content.
“Discovery,” the phase of the case where the parties demand and exchange information, can often be time consuming, expensive and hotly contested. No company likes to turn over private records, particularly not to the so-and-so on the other side of a lawsuit. The explosive growth in electronic communication has increased the volume of information that may potentially be sought in a suit and, therefore, anxieties regarding its production. However, courts err in favor of full disclosure, and the appearance or reality of the suppression of information can be worse – much worse – than its production.
I tell my clients that if they have a good claim or defense, they should not be afraid to produce their information and show that this is the case. If my clients have documents that cast doubt on their claims or defenses, I urge them to produce the information and deal with the consequences. Suppressing damaging information that turns up elsewhere can lead to the worst results. The risk that information not produced by a party may turn up elsewhere has greatly increased whenever email strings include third parties, who may later receive their own subpoena to produce information.
At trial, I would not fail to highlight damaging information that should have been, but was not, produced by the other side. In severe cases, a judge could give a damaging jury instruction concerning “spoliation” of evidence, its destruction or willful suppression. I would strive in every case to avoid having any such instruction be given against a client of mine.
For reasons in addition to political ones, Hillary Clinton should have used the State Department server for business emails while she was Secretary of State. In that fashion, when the emails were later the subject of legal demands, they would all have been on a government server and it would have been the State Department, not Mrs. Clinton, which would have had the burden of reviewing and producing emails and the risk of omission.
Similarly, businesses should strive to keep business communications on business and not personal property. If business communications are kept in a well-organized and/or searchable fashion, the expense of searching for and producing the information will be reduced, as well the risk that relevant information will be missed. Lax practices in this regard can result in information that is the subject of legal demands being overlooked, with potentially damaging results if the information turns up elsewhere.