Using private email servers is quaint at this point, you may as well be using private carrier pigeons. These days all the smart malfeasants in office are using encrypted messaging apps with disappearing messages[1][2].
The wildest part is that in the case of the January 6 plotters, they were instructed to use Signal:
> In the declaration from the Department of Homeland Security, filed under penalty of perjury, DHS claims that following a data breach in December 2020, Wolf and Cuccinnelli were given temporary phones and instructed to use Signal to communicate in December 2020 and January 2021. DHS claims the agency retained the Signal messages, but given that one of Signal’s selling points is its “disappearing messages” feature, the accuracy of this claim may be questionable.
That tactic is strongly recommended against. If there is an indication that someone is evading discovery by using their private email, then the private email becomes discoverable. Judges take avoidance antics very poorly, generally.
Recommended against, sure, but does that actually matter?
I had to sue the City of Chicago because one of the Mayor's main policy consultants was using gmail for most of their work. Sure the judge frowned on it and I won the case.... but well over a year later after litigation ended and the relevant reporting already came out. Didn't notice until a couple months after litigation ended that a full year was missing from the doc, and we'd have had to litigate again.
Private email discovery is a very much “it depends” situation. Specifically the legal context.
For example, in NJ Board of Ed members are elected officials. If they conduct board business in their personal phones or other devices or accounts, they are discoverable.
However, a judge ruled that, to protect their privacy, if this arises then Open Public Records Act (or State version of FOIA) request search on private phones can only be done by the phone’s owner, not the OPRA administrator.
So suddenly you have to trust individual board members to actually search their phones properly and not just lie.
In my case a board member was in this situation and just said “I deleted those texts”.
Which maybe is a technical violation of OPRA, but the penalties are a slap on the wrist here in NJ.
Yes - the right way to avoid discovery is in-person meetings, telephone calls, and discussions with your lawyer cced.
I find it pretty understandable that politicians would end up with the personal and professional blurred together to be honest - it's not really a job that lends itself to a clear distinction between the two. You can't really separate the Obama Presidency from Obama.
CC'ing the lawyer is popular, but probably counter productive. Just including your lawyer in the email chain doesn't make the email privileged and it's a good signal that there is something in the email you don't want found.
> As for “flagrant misuse of the attorney-client privilege,” that refers to Google’s “Communicate with Care” initiative. Google trained its employees to add its in-house lawyers on “any written communication regarding Rev Share [RSA] and MADA.” ... It also instructed that, when “dealing with a sensitive issue” via email, to “ensure the email communication is privileged” employees could add a “lawyer in [the] ‘to’ field,” “mark ‘Attorney/Client Privileged,” and “ask the lawyer a question.” ... Google employees assiduously followed that advice... As a result, Google’s outside counsel in this case initially withheld tens of thousands records on the grounds of privilege, which ultimately were rereviewed, deemed not privileged, and produced to Plaintiffs... This creation of faux privileged materials, Plaintiffs contend, “demonstrates that Google intended to harm competition through its contracting practices and its supposed procompetitive justifications were simply pretext.” ...
UNITED STATES OF AMERICA v. GOOGLE LLC (1:20-cv-03010) (citations omitted)
>Yes - the right way to avoid discovery is in-person meetings, telephone calls, and discussions with your lawyer cced.Yes - the right way to avoid discovery is in-person meetings, telephone calls, and discussions with your lawyer cced.
Hey, Joey, we still gonna whack that guy tonight? CC'ing my lawyer here like I always do when we're planning to murder guys.
