Order Is Intended to Provide 'Consequences' If Back-Ups Have Been Destroyed
By Jon Ponder on 11/12/2007, 3:11pm PT  

Guest blogged by Jon Ponder, Pensito Review.

In a ruling pursuant to lawsuits from two public interest groups in Washington, U.S. District Court Judge Henry H. Kennedy Jr. issued a temporary restraining order against the Bush White House today, ordering it to preserve backups of millions of emails the administration claims to have deleted:

"Defendants shall preserve media, no matter how described, presently in their possession or under their custody or control, that were created with the intention of preserving data in the event of its inadvertent destruction," wrote Kennedy in a Nov. 12 opinion in the U.S. District Court for the District of Columbia.

The lawsuits were brought separately by the National Security Archive, which is affiliated with George Washington University, and Citizens for Responsibility and Ethics in Washington (CREW), and have since been combined. The groups sued the White House after it claimed in April that 5 million emails that were generated between March 2003 and October 2005 were "missing." Topics of intra-office communication during that period would likely have included Hurricane Katrina and the 2004 presidential campaign.

In reality, email can require quite a bit of effort to destroy. Copies of individual emails --- even emails that users believe they have deleted --- are saved on the hard drives of the sender, the recipient and often on the various servers in the relay. On the other hand, in the ensuing seven months since it announced that the emails were missing, Bush operatives have had time to wipe clean hundreds of back-up drives and servers.

This fact was apparently contemplated in Judge Kennedy's ruling, in which he agreed with the recommendation of U.S. Magistrate Judge John M. Facciola last month that a restraining order should be issued. "Without such an order," Facciola wrote, "destruction of the backup media would be without consequence."