By Richard Martin, Information Week, March 18, 2008

18 Mar 2008 // A U.S. District Court judge has ordered the White House to demonstrate why it should not be required create and store a copy of the so-called "lost" e-mails from the period March 2003 to October 2005. Those electronic communications lie at the heart of a dispute between the Bush Administration and public-access groups over the archiving of electronic communications at the White House.

After taking office, the Bush Administration in 2002 effectively dismantled the Automatic Records Management System, instituted by the Clinton Administration in 1994. Theresa Payton, chief information officer for the White House Office of Administration, said in testimony last month before the House Oversight and Government Reform Committee that the Administration transitioned from Lotus Notes to Microsoft Exchange over a two-year period from 2002-2004, and that the ARM System established by the previous administration did not work properly with Exchange.

As a result, thousands or even millions of e-mail messages to and from White House officials -- many of them generated during the crucial period just before and after the invasion of Iraq in March 2003 -- have proven to be irretrievable. The White House has given various and conflicting responses on the matter of the lost e-mails. In April 2007, White House spokeswoman Dana Perino said at a press conference, "I wouldn't rule out that there were a potential 5 million e-mails lost."

Two Washington D.C. watchdog groups, the National Security Archive and the Citizens for Responsibility and Ethics in Washington, have filed suit against the administration in U.S. District Court to force the recovery of the e-mails and the establishment of an effective archiving system for electronic communications at the White House.

Today's ruling, by U.S. magistrate Judge John Facciola, gives the White House three days to "show cause in writing ... why it should not be ordered to create and preserve a forensic copy of any media that has been used or is being used by any former or current employee who was employed at any time between March 2003 and October 2005."

A "forensic copy" is defined as an exact copy of any physical device on which data is stored.

The ruling is considered a significant blow to the White House's assertion that retrieving and preserving the e-mails would cause an undue burden on staff and resources. Judge Facciola has "recognized the irreparable harm that could be caused by the loss of Executive Office of the President e-mails, and the significant questions raised by the statements of the EOP's representatives," says Meredith Fuchs, general counsel of the National Security Archive, a non-partisan institute at George Washington University that seeks to preserve the records of the federal government.

According to White House CIO Payton, the Bush Administration had tried to institute its own archiving system, known as the Electronic Communications Records Management System, but ultimately failed.

White House officials have until the close of business on March 21 to respond to the judge's order.