Judge Facciolo and some background re: e-discovery
has some interesting comments albeit this particular instance is about searching for dat/information, however it may shed some light on the Judge’s attitude as well.
scroll down a ways and you will find a piece
Criminal Case Raises Interesting e-Discovery Search Issues
a brief snippet..
Overall, in this opinion, Judge Facciola demonstrates a tolerance for the mistakes made by both sides, and a willingness to move on and look for practical solutions to the problem. Again, Alexander Pope said it well almost 300 years ago: To err is human, to forgive divine. Also recall Popes lesser known quote: A man should never be ashamed to own that he is wrong, which is but saying in other words that he is wiser today than he was yesterday.
That is an everyday reality in the fast changing world of e-discovery.
The next piece at same link above also specifically mentions the WH scenario and email snafus in general..
e-Discovery Teams: Self-Organization and Development of Evidence Preservation Protocols
February 17, 2008
The preservation of discoverable ESI in litigation is a core activity of any e-discovery team. It is also a key component of risk management. Obviously, if you do not preserve electronically stored information, and it is deleted, then you will never be able to find it or collect it, much less review and produce it. Just ask the Bush White House about that; they failed to preserve over five million emails. The whole nine-step e-discovery process depends upon proper preservation. So too does risk management. Unless you are the White House, your failure to preserve after notice is a sure road to sanctions. Risk control in e-discovery begins with the routine employment of effective litigation hold procedures. This is the best way to minimize the chance of inadvertent or intentional destruction of relevant electronic records.
This is a difficult task in the best of circumstances. Intels email preservation losses in the AMD antitrust case demonstrate that. Intel was trying to implement a very complex litigation hold procedure to preserve relevant evidence, but despite strong efforts by its team, it lost thousands of emails. The loss was caused by a number of mistakes, including design flaws in the notice and collection procedures, and the failure to suspend an automatic file deletion program for certain key witnesses. Spoliation was also caused by the simple human error of forgetting to look at a second tab of an Excel spreadsheet listing more key custodians.