Technologist - The FindLaw Legal Technology Blog

State Election Servers Deleted After Voter Lawsuit Filed

A recent AP story details some facts that appear to be particularly troubling for Georgia's Secretary of State, Brian Kemp, as he faces a lawsuit over the state's last two elections. Complicating the lawsuit, the state's main election servers have been deleted and completely wiped clean of any and all data.

The deletions came at rather suspect times, with the first server being deleted just days after the lawsuit was filed, and two others being scrubbed about a month later. In either case, it would seem that the state should have known better than to allow the servers to be scrubbed. Fortunately for the plaintiffs in the lawsuit, and the state and Kemp, the FBI had made a digital image of the servers before the lawsuit was ever even filed, and will provide a copy of their copy upon being provided with a proper request from the parties or court.

Lawsuit Background

The lawsuit against the state is related to the massive technical problem discovered by Logan Lamb that left the state's election servers vulnerable to hackers.The lawsuit seeks to annul the results of a special mid-year congressional election, as well as to finally retire the over a decade old electronic voting system used statewide, which is plagued with vulnerabilities.

The massive technical problem left a hole open to hackers whereby they could have accessed names, addresses, and even social security numbers of the state's nearly 7 million voters, but it also would have allowed hackers to access sensitive information such as the user names and passwords for election officials and employees. Months after Lamb disclosed the vulnerability privately, it had still not been fixed. And when it was "fixed" it was only partially done and still left the public's data exposed.

Duties to Preserve Electronic Evidence

While FRCP 37(e) used to provide some breathing room for accidentally deleted evidence if it happened in good faith and in the ordinary course of an electronic information storage system, that changed thanks to the 2015 amendments to the FRCP bringing the courts into the 21st century, finally. Now, parties have to take reasonable steps to preserve electronically stored information.

Related Resources: