Court orders NASA to save space station project e-mail

A federal court recently issued a protective order barring NASA from deleting any electronic mail associated with the design and development of its Space Station Freedom project a predecessor to the International Space Station.

The recent order from the U.S. Court of Federal Claims which came to light during a Sept. 9 meeting of NASA's information resources management council may be the first time a court has directed a specific agency to retain electronic communications according to a source close to the case. The order was issued as part of an $86 million Northrop Grumman Corp. lawsuit against NASA that involves a 1993 space station procurement to Boeing Co.

The motion for the protective order was made after Northrop attorneys learned of NASA's plans to program its e-mail system so that it automatically would erase all stored e-mail messages after 60 days the source said. At that time Johnson Space Center chief information officer Jack Garman said NASA created the policy because "all e-mail can be the target of a number of public and legal disclosure instruments" and because officials have trouble interpreting and enforcing federal records legislation [FCW June 2]. NASA officials also said that space agency employees were not allowed to use e-mail for official government business.

Rules issued in 1995 by the National Archives and Records Administration (NARA) stipulate that e-mail could constitute a federal record and that agencies are required to "put into place policies and procedures that ensure that e-mail records are identified and preserved." In addition a 1993 ruling in a lawsuit to prevent the White House from destroying e-mail from the Reagan and Bush administrations regarding the Iran-Contra affair stipulated that e-mail messages are official records and agencies must preserve those created in the course of official business.

Dick Dunne Northrop's director of public affairs declined to comment on the protective order. NASA attorney Shalom Brilliant who works for the Justice Department declined to provide detailed comment. He did say however that NASA is complying with the order.

During a July 25 hearing in federal court Brilliant said it is a "tremendous burden" on NASA's computer system to have to retain all e-mail communication in its database. According to court documents Brilliant said it is NASA's policy to print out and store e-mail communications that qualify as federal records. NASA officials will be allowed to apply for permission to modify the order on Sept. 28.

While many companies involved in litigation have begun to routinely request protective orders for e-mail that is to be part of discovery the trend had yet to spread to federal agencies before this suit said Michael Tankersley senior staff attorney with Public Citizen Litigation a coalition of public-interest groups researchers and historians that has filed a suit against NARA for a policy that allows agencies to destroy e-mail after printing a copy.

Robert Gellman a Washington D.C.-based privacy and information policy consultant agreed saying e-mail has become a "major league discovery device" in many private-sector lawsuits.

Eddie Becker a researcher who is among the plaintiffs suing NARA said every court order requiring the federal government to retain records is a significant event because of what he calls a lack of oversight by NARA.

"[NARA] issued guidelines that basically told all of the federal agencies that they could dump or delete their e-mail they gave them the caveat to print it out " Becker said. "A bulk trash bin isn't the solution there needs to be different degrees of destructiveness."