Emails. Text messages. Instant messages. Social media. The digital age has given birth to powerful new ways to communicate that have transformed how we live and conduct business. But the proliferation of communication options has come with increased exposure to claims in litigation of withholding, hiding, destroying, and losing evidence.

A reminder of the increasing danger of the digital age in discovery recently arose in the New York state attorney general's investigation of ExxonMobil's research into the causes and effects of climate change. After receiving documents from Exxon pursuant to a subpoena, the state attorney general informed a New York court that it had discovered that former Exxon CEO and Chairman Rex Wayne Tillerson had used an “alias email address on the Exxon system under the pseudonym 'Wayne Tracker' from at least 2008 through 2015.” Letter from John Oleske, Senior Enforcement Counsel, to The Hon. Barry R. Ostrager (March 13, 2017).

In the Exxon matter, the state attorney general claimed that emails from the Tracker email address contained information responsive to its subpoena, but that neither Exxon nor its outside law firm had disclosed to the state attorney general that the Tracker email address belonged to Tillerson and that it appeared that some of the arguably responsive Tracker emails had not been properly saved and produced. Exxon, in its reply to the court, claimed that there was nothing improper with Tillerson's use of the Tracker email address, which it said “allowed a limited group of senior executives to send time-sensitive messages to Tillerson that received priority over the normal daily traffic that crossed the desk of a busy CEO. The purpose was efficiency, not secrecy.” Letter from Theodore V. Wells to The Hon. Barry R. Ostrager (March 16, 2017). Exxon's lawyers also suggested that a technical glitch may have prevented automatically preserving emails from the Tracker account. Id.