A little-noticed Delaware court case is raising concerns that a single judge may impose onerous responsibilities on businesses to preserve computer code that may be present in the "unallocated space" on disk drives.
The case, TR Investors, LLC v. Genger, involves two prominent personalities — Arie Genger, a businessman who served as a back channel between his friend Israeli prime minister Ariel Sharon and the George W. Bush administration, and Leo Strine, a Delaware Chancery Court judge who has been in the news lately for his role in adjudicating the dispute between Barnes & Noble's Len Riggio and investor Ron Burkle.
But the case, which is awaiting an appeal hearing, is attracting attention in some legal circles — though not yet in the mainstream press or from the public — less for the personalities involved than because of the concern that the judge may have imposed a compliance burden that, had it been suggested by a lawmaker or a regulatory agency, would have been the subject of resistance by business groups concerned about the potential cost or even technical feasibility.
Writing in the October 2010 issue of the Northwestern Journal of Technology and Intellectual Property, two computer specialists, Daniel Garrie and Bill Spernow, say, "In imposing sanctions upon Genger, Vice Chancellor Strine has expanded preservation orders in the Delaware courts to include unallocated space in all computers and servers involved in litigation — an unintended result that is unworkable, unreasonable, and prohibitively expensive." They go on, "what the court perhaps did not fully understand is that every action, including just turning on the computer in the morning, creates, deletes, and modifies hundreds of files and overwrites data in the unallocated space."
In another law journal, the Legal Intelligencer, a lawyer specializing in electronic discovery, Leonard Deutchman, wrote, "The consequences of the court's decision are profound and far-reaching. The court's reasoning, however, is in my view suspect both legally and technically."
In the case, Trans-Resources was the subject of a control battle. In the midst of this, Mr. Genger took steps to remove his personal and Israeli government-related files from the company computers, while leaving the company's files untouched. His wiping of the unallocated space on the hard drive — which one of the writers commented on the case compared to a trash can next to a poet's desk — is what irked Judge Strine.
The appeal will be worth watching; in the meantime, the case is a reminder that government intervention can come not only from Congress, regulatory agencies, or the executive branch, but from individual judges.