Must You Retrieve Deleted Files?

How far do you need to go to recover deleted emails?  As the Federal Rules of Civil Procedure are further defined by the courts, we are beginning to see some definition. 

Magistrate Judge Elizabeth Jenkins of the U.S. District Court in Tampa recently rules that deleted files are not actually gone and must be retrieved:

Deleted emails are, in most cases, not irretrievably lost. Discoverability of Electronic Data Under the Proposed Amendments to the Federal Rules of Civil Procedure: How Effective Are Proposed Protections for “Not Reasonably Accessible” Data? 83 N.C.L.Rev. 984, 988 (2005).  Deleted emails may remain on a computer hard drive, servers or retained on back-up tapes. Id. at 988-90.  ...

The producing party has the obligation to search available electronic systems for deleted emails and files. Peskoff v. Faber, No. 04-526 (HHK/JMF), 2007 U.S. Dist. LEXIS 11623, at *13 (D.D.C. Feb. 21, 2007)

Ralph Losey, in his blog e-Discovery Team, makes an impassioned plea for the courts to make a distinction between what he calls deleted and double deleted.  In Outlook, for example, if you delete a file, it actually moved to the Deleted Files folder.  This is what he calls once deleted.  If you empty the Deleted Files folder, then he says the message is double deleted. 

A double deleted file requires forensics to retrieve.  Losey's plea is that retrieving a twice deleted file requires extraordinary efforts.   (It is something like finding all the paper in the shredder and gluing them back together.)  Such efforts, he believes, should be reserved for extraordinary circumstances.

At the moment, we do not know whether the courts will support Losey's position.  But, it certainly does add weight to the argument that all emails should be preserved in a central archive.  Computer forensics is very expensive and even one use would likely cost more than the most costly archiving system,