The IRS’ inability to locate a trove of emails belonging to Lois Lerner, the former agency official at the center of the department’s targeting scandal is “mind-boggling,” according to an expert in electronic discovery.
Bruce Webster, who has served as a consulting and IT expert in more than 80 civil lawsuits, is astonished by the fact that the IRS could lose two years’ worth of emails.
“It is very well known in both legal and IT circles that as soon as litigation and/or criminal investigation is likely -- not actually initiated, but merely likely -- it is imperative to preserve any relevant electronic documents, even it if means suspending existing practices of, say, email deletion or purging of backup files,” he explained in an email to FoxNews.com.
“So, for the IRS to come back and say, ‘we didn't save those emails on our servers, and the external hard drive that Ms. Lerner used to backup the emails has crashed’ is mind-boggling. In a court of law, that could be considered grounds for finding spoliation of evidence; in other words, even if the loss was inadvertent, it would be considered as deliberate destruction of evidence and sanctioned accordingly.”
In a letter sent last week to Senate Finance Committee Chairman Sen. Ron Wyden, D-Ore., and Sen. Orrin Hatch, R-Utah, the top Republican on the Committee, the IRS explained that Lerner’s computer crashed in mid-2011, with the data stored on the computer’s hard drive deemed “unrecoverable.”
Officials sought to piece together as many of Lerner’s emails as possible, which included searching for emails across the organization where she appeared either as author or recipient. As result, the IRS was able to identify approximately 24,000 Lerner-related emails between January 1, 2009, and April 2011.
The missing emails have nonetheless shined a spotlight on deficiencies in IRS backup procedures. The IRS does a daily backup of its email servers, effectively providing a snapshot of content in email inboxes. Prior to May 2013, however, these backups were stored on tape for six months, with the tapes then being recycled. In May of last year, the IRS changed its policy and began storing, rather than recycling, its tapes.
Experts are also focusing their attention on Lerner’s actual hard drive, with Webster noting that in a typical hard drive failure, much of the data can be recovered via computer forensic tools such as EnCase or FTK.
“I suspect the emails could still be recovered if the hard drives they once resided on were immediately sequestered and forensics tools applied,” added Richard Stiennon, of industry analyst firm IT-Harvest, in an email to FoxNews.com.
In its letter the IRS said that more than 250 of its employees have spent over 120,000 hours working on compliance following the investigations that stemmed from last May's report by the Treasury Inspector General for Tax Administration.
The agency also acknowledged its challenges finding specific data, noting that its IT systems are designed more for tax administration and preserving confidential taxpayer information.
"They are not really organized to produce this stuff," Roger Kay, president of tech research and consulting firm Endpoint Technologies Associates, told FoxNews.com. "The idea that this happened doesn't surprise me."
This week, the House committee probing the IRS targeting scandal subpoenaed Commissioner John Koskinen to testify about the agency’s claims it cannot locate Lerner's email trove.