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What the Petraeus Scandal Can Teach Us about the Power of Electronically Stored Information

Created on November 20, 2012

Those in the e-discovery industry live in a world of electronically stored information (ESI), metadata, legal holds and data collections. In reality, these terms and concepts aren't widely understood by the legal community, let alone the general public. For that reason, incidents like the scandal surrounding General David Petraeus' extramarital affair help to remind us all some of the unique ways ESI can be used to unearth facts and piece together a story.

The purpose of this post is not to recount the entire Petraeus saga. Rather, my goal is to draw attention to some of the details surrounding how this affair was uncovered, namely the role email played in leading investigators to the truth.

The “scandal" was set in motion last spring when Jill Kelly, a Petraeus acquaintance complained of receiving harassing emails from his biographer, Paula Broadwell. The emails, which were sent through Gmail, came from an anonymous account which didn't ostensibly tie back to either Broadwell or Petraeus, in any way. Upon learning of the emails, the FBI launched an investigation and according to the Wall Street Journal's reporting,

“Used metadata footprints left by the emails to determine what locations they were sent from. They matched the places, including hotels, where Ms. Broadwell was during the times the emails were sent."
As the investigation unfolded, investigators stumbled upon another email discovery, which helped them further substantiate the salacious nature of Broadwell and Petraeus' relationship. The General and his biographer somewhat ironically had relied on an email communication tactic commonly used by the very terrorist organizations Petraeus, as head of the CIA, was responsible for weeding out. According to the AP,
“Rather than transmitting emails to the other's inbox, they composed at least some messages and instead of transmitting them, left them in a draft folder or in an electronic "dropbox," the official said. Then the other person could log onto the same account and read the draft emails there. This avoids creating an email trail that is easier to trace."

Needless to say, the plan didn't work. Starting with just a few emails from an anonymous sender, using an anonymous account, investigators were able to not only tack down the source of the communications but dig deeper, uncovering a broader web of messages implicating others in the affair, including another prominent U.S. military commander, General George Allen.

It brings to mind another national story that we reported on several months back involving the disastrous BP Deepwater Horizon oil spill. In that post, we wrote of a former BP engineer who was arrested after deleting a large text message string despite being repeatedly informed of his obligation to maintain such records. An arrest affidavit confirmed that “forensic analysis" had uncovered the deletion.

In both the Petraeus and BP stories we see people employing creative tactics to conceal their illicit activities, which have been documented by the ESI trails they have created. It's a story all too familiar in the world of e-discovery, where litigants attempt to delete, hide, distort or otherwise alter ESI that might be damaging to their case or reputation. And in almost every case, they end up digging an even deeper hole.

The Petraeus story should serve as a reminder to anyone engaging in immoral, unethical or otherwise questionable behavior that, more often than not, it's ESI that exposes the wrongdoing regardless of measures taken to hide the truth.