Senator John Ensign’s guide to electronic evidence: hide the email, destroy the email, delete the mailbox
In our recent paper on Facebook’s new messages system we mentioned in passing issues caused by the use of personal webmail accounts for business or government purposes. We specifically mentioned the example of US Senator John Ensign, which we also touched on in last week’s seminar in Dublin. Having mentioned Senator Ensign several times we realized his case may not be widely known, despite coverage by e-discovery commentators such as Perry Segal and in the press.
John Ensign was a United States senator for Nevada who was elected for the Republican Party in January 2001. In May 2011 he resigned from the Senate as a result of an investigation into ethics violations. The background to his resignation lay in an affair he conducted with Cynthia Hampton, a member of his staff. Disclosure of the affair led to investigations by the FBI and the Senate ethics committee amid allegations that Ensign broke the law in order to cover up his affair and made inappropriate payments to Hampton including a an alleged severance payment of $96,000.
Emails as evidence in court
BSkyB Ltd & SSSL Ltd Versus EDS LLC & HP Enterprise Services UK Ltd (EWHC 86 (TCC) Case No: HT-06-311)
Background
This is one of the most important commercial litigation cases of the last few years. In 2000, BSkyB Ltd contracted EDS to create a new customer relationship management (CRM) system. The project ran into many problems early on and EDS were eventually removed from the project.
“Sky [BSkyB] hired EDS in 2000 to create a new customer management system, but terminated the £48 million contract in 2002 after what it described as a “woeful” performance”. It then filed a lawsuit against EDS and completed the job itself in-house.” (Emma Barnett, The Telegraph)
“Lawyers for Sky [BSkyB] told the judge during the high court case that the project eventually took six years to complete and if the contractor had been honest about its abilities, BSkyB would have chosen a different company.” (Jason Deans, The Guardian)
BSkyB began High Court proceedings against EDS in 2004 for fraudulent misrepresentation, negligence and breach of contract, alleging that their main contact in EDS had deliberately lied on several occasions about the timeline, cost of the project and other items.
