November 5, 2007

Federal Judge Orders Forensic Review of Bredesen Administration Computers in Huge TennCare Lawsuit

The Tennessee Journal reports today that U.S. District Judge Joe Haynes has ordered the Bredesen administration to allow a forensic inspection of computers used by Gov. Phil Bredesen, Finance Commissioner Dave Goetz, and 158 other "key custodians" of records related to TennCare as part of a class action lawsuit against TennCare filed by the Tennessee Justice Center.

The order came in a dispute between state officials and the Tennessee Justice Center over what information is or should be available in the case. The Justice Center, a not-for-profit advocacy group led by Nashville lawyer Gordon Bonnyman, contends the state improperly failed to preserve pertinent records. ... Under the order, forensic copies will be made of computer hard drives. The copies will be searched for children's services documents, including deleted files.

It is unusual for a court to order a forensic inspection of this magnitude in a non-criminal case, but ESI is a relatively new area of law. Haynes' order allows the Justice Center to have its own expert present when the defendants produce the ESI and to step in as necessary to help produce metadata - which shows when files were created and changed. The expert, Thomas Tigh, or his designee also will be allowed to inspect the state's computer system to "assess whether any changes have been made to hinder the ESI production."

The State failed over an eight-year period to implement an effective litigation hold, resulting in the routine destruction of responsive electronic and hard copy documents by both state agencies and their contractors. The Governor's counsel and the state's Attorney General's office issued a litigation hold shortly before the Washington firms were hired in May 2004. But the court found that the litigation hold was not effectively implemented.

That would be the same Bredesen administration that once systematically - and without apologies - shredded documents related to sexual harrassment allegations against administration staffers.

Judge Haynes should reject the Bredesen administration's attempt at continued secrecy and cover-up in this TennCare lawsuit.

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