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Starting in 1996, Alexa Internet has been donating their crawl data to the Internet Archive. Flowing in every day, these data are added to the Wayback Machine after an embargo period.

TIMESTAMPS

CALIFORNIA CIVIL DISCOVERY LAW
DISCOVERY OF
ELECTRONIC DATA
© Richard E. Best 1998-2003 All Rights Reserved

Your constructive comments are appreciated [email protected]
THIS SITE DOES NOT PROVIDE LEGAL ADVICE

WHY DISCOVER
ELECTRONIC DATA ?

"We must become much more efficient and more clever in the ways we find new
sources of data, mine information from the new and old, generate information,
make it available for analysis, convert it to knowledge, and create actionable options."
Admiral John Poindexter, Former Director, Information Awareness Office.
8/2/02 prepared remarks, DARPATech 2002 Conference, Anaheim, Ca
http://www.fas.org/irp/agency/dod/poindexter.htmlHOME

WHY DISCOVER ELECTRONIC DATA ?

See Why discover electronic data? article in pdf.
E-Discovery Basics article in pdf

BECAUSE IT'S THERE: vast accumulations of data, documents and information that may be unknown to your opponent await your discovery
BECAUSE STANDARDS OF PRACTICE REQUIRE IT

NEW DOCUMENTS THAT DO NOT EXIST IN HARD COPY

Electronic documents not existing in other forms
Electronic forms of documents at variance to or in lieu of hard copy
Information remnants when deletion or overwriting is incomplete

BEYOND CONVENTIONAL DOCUMENTS: other electronic information
NEW INFORMATION THAT IS UNAVAILABLE FROM HARD COPY
NEW SOURCES OF INFORMATION OR DOCUMENTS
INCREASED ACCESS, ANALYSIS & MANIPULATION OF DATA & INFO
COST EFFECTIVE DISCOVERY
PROFESSIONAL RESPONSIBILITY

WHAT IS E-DISCOVERY? E-discovery involves the access and use of information, data, and records created or maintained in electronic media. E-discovery is more than rephrasing discovery requests to include electronic records and data; it is more than printing out e-mails. It includes obtaining new information, in new forms, in new places, from new sources and using it in a new manner. E-discovery includes different approaches and disciplines: (1) computer forensics where scientific methods are employed to analyze sources of e-data such as as hard drives or servers to determine if evidence was accessed, destroyed or fabricated or to find computer generated evidence of which lay persons are unaware such as access logs or meta data; (2) the searching, gathering, reviewing, analyzing, producing and using large amounts of relevant information, in "routine" litigation, i.e. the equivalent to searching warehouses, waste baskets, file cabinets, home offices, personal notes etc., which is often performed or facilitated by outside service providers; (3) the focused search for electronically stored information particularly relevant to the specific case such as toll records, cell phone and GPS records, e-mail or instant messaging communications of key participants, a surveillance tape of the scene of the incident, a data base that identifies potential witnesses or records events, computer records in an automobile revealing information relevant to the accident, records of Internet activities.

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BECAUSE IT'S THERE:
BECAUSE STANDARDS OF PRACTICE REQUIRE IT:

Can a lawyer's discovery strategy ignore significant amounts of relevant, possibly critical, material?
Can lawyers rely on opposing parties to search and produce electronic information ?

NO. Lawyers must be proactive in seeking electronic information. They cannot expect opposing parties or lawyers to seek and produce electronic versions of documents or electronic information existing outside of the conventional, hard copy document category even if they expressly include e-data in their definition of documents or expressly request electronic data. Surveys in the past have revealed that a large majority of lawyers and clients did not understand that electronic data was subject to discovery, or that they must seek it as part of a reasonable search, or that they must preserve it. Lawyers seeking all relevant information must know what they are seeking, specifically request it and actively pursue it. If they don't possess the knowledge to pursue electronic information they may need to retain expert assistance.

SEE Leviton Mfg. Co., Inc. v. Nicor, Inc.  (D.N.M. 2006)Slip Copy), 2006 WL 1305036, 2006 U.S. Dist. LEXIS 27655. Although "counsel repeatedly represented that his client had produced all the information requested and that his client's representations were accurate", Plaintiff had copies of documents that defendant should have produced that were produced by others, some of which were restricted by protective orders, including e-mails sent to others.

"The primary issue is what the Court should do given that Leviton has shown the Court documents that Leviton requested but Defendant Zhejiang Dongzheng Electrical Co., Ltd. did not produce. Because the Court is concerned that Dongzheng has not accounted for documents that at one time were in its files, the Court will order Dongzheng to produce all responsive documents, require Dongzheng to account for all the documents that Leviton has shown the Court, require Dongzheng to make its computers available for inspection, and require Dongzheng to provide Leviton with an authorization for production of Dongzheng's email communications with its customers."
See also Zubulake re non-production of e-mail by defendant when plaintiff had copies.

Can lawyers adequately represent their clients in responding to discovery without knowledge of e-discovery?

E-discovery is not an option and must be considered in every discovery plan in every type of case. It can be as important in the slip and fall or divorce case as in intellectual property or antitrust litigation. Electronic data, information, and evidence permeates our lives. Most records are created in electronic media and are never converted to hard copy. Consequently, all lawyers must have a basic level of understanding and appreciation of the importance and nature of electronic records and information as well as the unique issues e-data raises in litigation. Today, malpractice claims are rising as past errors and omissions are revealed; and, sophisticated clients are leaving established relationships for lawyers that can handle electronic discovery issues. Lawyers who fail to search for, preserve and respond to discovery based on e-data put their clients at risk for discovery santions including adverse judgments and put themselves at risk for malpractice claims.Clients understand the significance of electronic data and expect their lawyers to gather and use such evidence.

Electronic data includes a vast array of information from intact documents created or maintained in electronic form, to data entries and records that may be subject to change in the normal course of business, to electronic fingerprints or information deposited as people move through the information economy or through the physical world: telephone records, ATM records and surveillance pictures, transponders and GPS records of vehicle movements, Internet tracking cookies, RF chips in clothing, books, etc., CCTV and web cams. It may involve a search of one PC hard drive for file fragments of a key deleted document or a general search for relevant documents or emails from among millions or billions of documents on backup tapes. Needless to say, the search must be focussed and tailored to the needs of the case.

Limiting discovery to hard copy may neglect significant accumulations of data, documents and information that may be unknown to your opponent await your discovery

93% of documents are created electronically
Some estimate only 30% of documents are in hard copy
Counsel limiting discovery to hard copy neglect potential evidence that is not reflected in hard copy

"Smoking guns" and other documents may be overlooked

See primer on the types of info found on computers: Secure File Deletion, Fact or Fiction? by John R. Mallery, July 16, 2001, found at http://rr.sans.org/incident/deletion.php

Unobtrusive accumulation & retention of documents or portions await discovery by those willing to engage in electronic forms of "dumpster diving"

Embedded information created without user's knowledge that does not appear in printed documents:

edit history [e.g. date, time and person accessing network or document] and
hidden comments [may explain changes, authenticate documents]

Copies of documents or drafts created by the operating system without the user's knowledge to allow recovery in case of power failure or other incidents that might result in lost work; slack files, swap files, temp files

Undo and change tracking features on software may reveal important revisions of documents

"Deletions" undeleted until overwritten after indefinite period;

Commonwealth v. Copenhafer, 587 A.2d 1353 (Pa 1991) [murder conviction from recovery of "deleted" files from PC including drafts of ransom notes and outline of the plan]
"deletions" remain indefinitely until overwritten or wiped;
undelete or salvage commands in OS or special program

United States v. Ray, 428 F.3d 1172 (8th Cir. 2005)

Evidence of systematic destruction when not the norm as evid of cover-up

See RKI v. Grimes (N.D.Ill.2001), 177 F.Supp.2d 859, 877 ["...the defendants' spoliation of evidence on their computer supports a negative inference that defendants destroyed evidence of misappropriation." Misappropriation of trade secrets established by circumstantial evidence; deletions and defragmentation was highly suspicious and provided circumstantial evidence]

Kucala Enterprises Ltd. v. Auto Wax Company Inc. (N.D.Ill. 2003, Case No. 02 C 1403) When Counterdefendant Kucala used Evidence Eliminator to eliminate some files the Magistrate Judge concluded “Kucala has engaged in egregious conduct by his flagrant disregard of a court order requiring him to allow inspection of his computer and his utter lack of respect for the litigation process.” and recommended terminating sanctions. Even Kucala suggested a lesser sanction of an adverse inference. The District Court Judge on de novo review rejected the recommendations though she concluded: “Thus, the magistrate judge’s conclusion that Kucala’s conduct was “egregious” and “in flagrant disregard of a court order” is fully supported by the record.” The court awarded monetary sanctions and prohibited a claim of invalid patent.

Unknown copies, file remnants, versions, drafts or portions of documents
File clones may exist on hard drive, servers, home computers, laptops, PDA's or as email attachments
Automatic backup copies of documents on computers: created & saved by OS to provide backup in case of emergencies
Backup tapes, diskettes, email storage, and other forms of storage, archives, or emergency recovery devices
Proliferation of copies; email to group; to entire organization + forwarded copies

Versions of documents from collaborative efforts
Hidden comments to co-workers
Buffer memory in fax, printer, voice mail

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NEW DOCUMENTS THAT DO NOT EXIST IN HARD COPY
E-mail is a classic example of a "document" that was unknown to most people a few years ago but has become a primary source of communication. It is created and exists in electronic form. When printed, only part of the information is revealed. Meta data containing information about the origin, authenticity and transmittal that might be relevant to authenticate the communication are excluded. Hard copies of other "documents" may not include useful information such as creation dates, access information, hidden comments, changes reflected in tracking etc. that may be included in electronic versions of the documents. New "documents" are created every day with changes in technology. Just as employers and lawyers are getting a handle on e-mail, the world moves on to instant messaging.

Electronic documents not existing in other forms

Email text and attachment of documents otherwise unavailable

Kupper v. State of Texas(Tex App.2004), 2004 Tex. App. LEXIS 337 [child sex assault conviction affi'd.; recovery from image of computer hard drive including deleted material and email message and photo from temporary internet file; chain of custody and authentication issues raised on appeal but rejected; ]

Email header: communication trail, and information re creation, recipients, transmittal & receipt times

Weblogs or blogs
Document collaboration i.e. WebEx,
EDI [Electronic Data Interchange] audit trails of business purchases through VAN [value added network]
Fax text and related information [sender, date, time, telephone number]
Voice mail
Electronic calendars etc.
Corporate intranets: manuals, employee suggestions

Postings on Internet newsgroups [search by user or email ] or bulletin boards by e.g. disgruntled employees

Instant Messaging

People v. Ulloa (2002), 101 Cal.App.4th 1000 [In search of home computer for pictures and videos the only evidence from the search introduced at trial was AOL instant messages; motion to suppress for unreasonable search denied; criminal conviction of oral copulation with minor affirmed]

State of Washington v. Townsend (Wash.2002), 57 P.3d 255, 2002, WL 31477600 [see for discussion of instant messaging re some software defaults to copy IM ]

Electronic forms of documents at variance to or in lieu of hard copy

Deleted documents that can be recovered from the hard drive or other storage
Prior versions, drafts etc.on backup tapes, diskettes, home computers
File fragments in slack space not overwritten with new data after "deletion"

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BEYOND CONVENTIONAL DOCUMENTS: other electronic information

Electronic data is different in that it is not just an electronic picture of a conventional "document" that is simply printed to hard copy. It is data or bits and bytes in cyberspace that requires proper hardware and software to read. Electronic sources have proliferated as the average business and individual has embraced technology that stores information. Lawyers must think of alternative sources of information and actively pursue them.

IP address as tracking device

Paramont Pictures  v. Davis (E.D. Pa 2006) 2006 WL 2092581   ["An IP address is a unique number assigned to an internet service subscriber by one's internet service provider (“ISP”) while one is connected to the internet. It is a matter of public record which IP addresses are assigned to each ISP. BayTSP downloaded segments of the digital file from the individual and identified the unique IP address being used as one assigned to Comcast." ...  "Comcast assigns its subscribers unique IP addresses to track their subscribers connectivity to the network in order to bill them for that time and monitor for any malicious activity. The accuracy of Comcast's billing records and the integrity of its network rely upon keeping accurate track of its subscriber's IP addresses."...  "BayTSP identified and tracked the motion picture file's metadata, the date and time at which the motion picture was downloaded, the infringer's IP address, the percentage available for download on the infringer's computer, and the infringing computer's unique hash number" ]  See also the earlier opinion .  Paramount Pictures Corp. v. Davis (E.D.Pa.2005), 234 F.R.D. 102 , 2005 U.S. Dist. LEXIS 31065

GPs tracking of rental cars and trucks: Start & stop times, distance and speed reports; "black boxes" for land vehicles;

Morgan v. U.S. Xpress, Inc. (M.D.Ga. 2006), Slip Copy, 2006 WL 1548029. Adverse inference from "possible spoliation" of GPS data showing vehicle location at time of accident was sufficient to defeat summary judgment. In a motor vehicle accident, an eye witness and the plaintiff driver saw a second vehicle leaving the scene but Defendant claimed (1) the accident only involved a single vehicle, or (2) the second vehicle was not its tractor and trailer or (3) the trailer was pulled by another unknown party's tractor. Defendant's driver logs suggested two of its drivers could have been on the scene but the drivers denied it. Plaintiff sought GPS data from defendant's computers to show the location of defendant's tractor trailers. Defendant claimed the data was routinely purged after 14 days and before notice of the accident was received from plaintiff but plaintiff contends it was not purged in 14 days and was on backup tapes until after the litigation commenced before the backup tapes were destroyed contrary to the company's data retention policy. In denying summary judgment the court found "[driver itineraries], when coupled with the adverse inference that may be drawn from [defendant's] possible spoliation of evidence, raises a genuine issue of material fact and allows Plaintiffs to avoid summary judgment."

Frey v. Gainey Transp. Services, Inc. (N.D.Ga.,2006), Slip Copy, 2006 WL 2443787. Failure to preserve GPS tracking information after receipt of a detailed, broad, 15 page preservation order prior to a lawsuit did not result in spoliation sanctions.

Smart Driver: http://www.smart-driver.com
Gearworks / Etrace http://www.gearworks.com/products/etracext.cfm
Signal Trac http://www.signalwireless.com/

Browser information

cache of visited sites [may not be overwritten for some time]
bookmarks or favorites indicate web sites frequently visited
history of time or date of sites visited
"cookies"

deposited on hard drive by web sites to id visitors, etc.
may identify interests and provided relevant information by showing sites visited
For description of how "cookies" work see In re Doubleclick, Inc Privacy Litigation (S.D.N.Y.2001), 154 F.Supp.2d 497 and In re Pharmatrak, Inc Privacy Litigation (D.Mass. 2002), F.Supp.2d , 2002 WL 1880387

Logs of computers to track persons who access sensitive data & reports

Matter of Ackermann v. Comm'r of Labor (N.Y. App. Div. 2006) 2006 NY Slip Op 5879, 2006 N.Y. App. Div. LEXIS 9439  "...a software support specialist in the information technology department of the Kings County District Attorney's office, was terminated after it was discovered that she had logged on to the e-mail accounts of three of her supervisors without their authorization." "...printed screen shots [were] admitted into evidence reflecting that claimant identified by her user name had logged on to her supervisors' e-mail accounts." The denial of unemployment benefits was affirmed by the court.

Web site log files re visitors [date & time of access and Internet address; prior web sites]
Personal data assistants, laptops, personal computers
Surveillance cameras and web cameras everywhere
Cell phone records of calls and locations of callers
Voice- mail and audio files
Databases

McDowell v. Government of Dist. of Columbia  (D.D.C.2006), 233 F.R.D. 192 [February 9, 2006 initial decision. See fee award order: ] Delay and expense incurred due to failure of defendant to make proper queries of its database resulted in an award of monetary sanctions in the amount of $ 72,910.12. The requesting party was ordered to "submit to the court a detailed report identifying the amount of attorneys' fees and costs that have been expended since February 3, 2003 in attempting to secure the PD 163's."
"Since the beginning of discovery in this case, plaintiff has sought to query CJIS for information about those arrests in which the individual named officers, while not the arresting officer, nonetheless participated in some fashion in the arrest. While defendants have repeatedly acknowledged that CJIS contains an "other officer" field, defendants only recently conceded that a query of this field can actually be performed." "...almost three years after plaintiff's first request for production of documents, defendants finally stated conclusively that data could be accessed for arrest events where the named officer was not the arresting officer." "The most obvious problem relating to the PD 163's is the fact that plaintiff will only get the relevant PD 163's if the spreadsheet is the result of a carefully worded and accurately executed query."
In the fee award order [2006 WL 1933809 (D.D.C. 7/11, 2006) , 2006 U.S. Dist. LEXIS 46371], the court noted "...the rationale underlying my decision to award attorney's fees remains the same. But for defendants' failure to comprehend the capabilities of their own record-keeping system, plaintiff would have had the discovery she sought at a much earlier date."

Toll booth records showing presence and speeds
Credit card and banking records showing transactions and locations
Access records to buildings and rooms
Grocery store discount cards
Employer software to record activities of employees, audit trails and computer logs

programs used
files accessed: who, where, when & for how long
modifications, by who, when
downloads --- when, who, where

-copy, print or purge

e-mail sent and received
Web sites visited, date & how long
computer bulletin boards contacted.

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NEW INFORMATION THAT IS UNAVAILABLE FROM HARD COPY
Network and PC operating systems and applications and other electronic devices [e.g. fax machines] create information in addition to the text of documents that may reflect on the authenticity of the document or provide additional information that is of more value than the text.

Information generated by application or OS on PC or network;
File header information: date creator, who worked on file and when
Name date & time of creation, review, access or modification
File names and changes thereto;
Alterations, versions, earlier drafts of documents
Relationship/arrangement of files may indicate authenticity [dates w/in]
Structures of tables and records
Hidden Comments in inserts, headers or footers that don't appear on hard copy
Temporary files, automatic backup of drafts: .tmp, .bak, .bk, .wk, .swp
Email threads provide context and informality; message numbers; connections, replies, activity logs
Acknowledgment of receipt of email
Voice mail & voice mail backup, forwarding

Del Campo v. Kennedy (N.D.CA. 2006), 2006 WL 2586633, 2006 U.S. Dist. LEXIS 66728 The court granted Plaintiff's motion "to prevent the destruction of [recordings of telephone calls] and for an order requiring the parties to meet and confer to develop a document preservation plan." Defendant's new phone system provided the "ability to automatically record all calls".

Directory may show content of information though information was erased
Distribution lists may reveal sources of information, potential witnesses, repository or documents
File fragments: only part of deleted file overwritten; slack space
Evidence of destruction, back dating or variations from retention policy
Evidence of other documents or activity from e.g.email headers
Employer software to monitor activities of employee: email, files, web sites

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NEW SOURCES OF INFORMATION OR DOCUMENTS THAT MIGHT OTHERWISE HAVE BEEN DESTROYED
Lawyers must think of alternative sources of information and actively pursue them. Documents that may not be available in hard copy or from the original electronic source by normal search techniques, may be located from other sources in electronic form due to multiple copies or from the original source via more sophisticated search and recovery techniques. Documents that have been deleted from one data base or memory may be retained on other hardware or in storage media or may be recovered in whole or part. Computers allow for the unobtrusive accumulation and retention of vast amounts of data that may be obsolete and unnecessary but interesting.

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Backup systems Regulations in specific industries such as medical, securities or corporate rules  impose retention requirements and may result in separate storage and greater accessibility that systems designed for disaster recovery

Backup tapes. Provides a periodic snapshot of files on a particular system on a specified date; deleted documents may be retained indefinitely on backup tapes. The purpose is to protect against catastrophe rather than provide access; legitimately, the data may not be easily accessed or complete. Storage may be offsite or via the Internet for protection. Some are overwritten periodically due to normal rotation of tapes and may necessitate a protective order for preservation to stop rotation and preserve those from routine destruction. Those overwritten may leave file fragments to be discovered. Others may be preserved indefinitely. Analysis may allow comparisons of backup copies with other copies to suggest tampering, modifications, or intentional destruction of evidence. Examination is time consuming and expensive due to extensive data, lack of organization, search difficulties, and need for special hardware or software to read or restore data. See Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 re denial of discovery from archives and backup tapes that would require heroic efforts when probability of additional discoverable documents or files was not likely.

Digital backup tapes may provide greater access and be subject to electronic search.

E-mail and other archive systems may provide  less expensive and easier access and search

Multiple locations of copies

Copies of email stored on original computer, the sender's server, recipient's server, recipient's computer plus similar storage for all persons receiving copies
Redundant systems and backup systems
Archiving and storage required by regulation or statute
Employees who copy documents or access documents from remote locations

Other storage media:

Diskettes, floppies
Magnetic tapes
Jazz and zip drive backups
Servers that may retain copies: networks, VAN, ISP, VPN
Buffer memory in fax machines, printers, digital copiers

RAM 2-5MB[several 100 pages] in office/commercial printers
Lost when printer turned off

Documents created on one device may be inadvertently copied on another e.g. document copied onto floppy from office and printed on the home computer may be copied into a temporary file on the home computer

Hardware memory alternatives

LAN with document saved on server and PC or only one
PDA, palmtops, electronic calendars
Laptops
Home computers
Discarded, "damaged" hard drives and floppies with recoverable information
Video cameras
Printers
Fax machines
Copy machines/1202
Proxy servers

Information in one application may exist in another format

Spreadsheet info transferred to report

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COST EFFECTIVE DISCOVERY

"We must become much more efficient and more clever in the ways we find new
sources of data, mine information from the new and old, generate information,
make it available for analysis, convert it to knowledge, and create actionable options."
Admiral John Poindexter, Director, Information Awareness Office.
8/2/02 prepared remarks, DARPATech 2002 Conference, Anaheim, Ca
http://www.fas.org/irp/agency/dod/poindexter.html

See also Virtual Discovery
See also Managing Discovery Documents through Imaging by George J. Socha, Jr.

Purpose of computerization, efficient and cost effective processing of data for the production of information in a more useable form, should be applied to discovery to reduce costs and burden

State of the art search, analysis, storage and retrieval technologies should be a factor in determining discovery obligations and cost shifting, as well as developing protocols for cost effective discovery

Cost resulting from inadequate organization, technology etc should not impede discovery
Consider in connection with issues such as reasonableness of search efforts, relevancy vs burden equation
Volume alone should not overly impress the parties or courts

Production of data in electronic form to reduce or eliminate

the need and costs to scan or copy documents,
the time and costs to inspect, extract and copy information, use in different form
the need and costs to ship, store & handle documents

Production of data in electronic form to allow integration into litigation support databases

Production of data in electronic form to allow integration into electronic trial presentation

Review and management of high volumes of documents may require new approaches

Analysis of all systems by all parties to identify and preserve relevant data

Search and preservation duties of producing parties; spoliation consequences
Reasonable particularity requirement on requesting party
Background for follow-up by requesting party to assure adequate search & production
Identify specific computers for on-site discovery

Key word and content searches
Filtering out of duplicative documents or files by types that do not contain data
Privilege and privacy protection may have to be satisfied by procedures less than document by document examination by an attorney or paralegal with reasonable relief for inadvertent production of such

See Attorney-Client Privilege case outline under Waiver / Inadvertent disclosure

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INCREASED ACCESS, ANALYSIS & MANIPULATION OF DATA & INFORMATION
Purpose of computerization, efficient and cost effective processing of data for the production of information in a more useable form, should be applied to discovery to facilitate discovery and to reduce costs and burden

Paper may be inadequate and production of e-docs the most cost effective

State Farm v. Engelke (Tex. 1992), 824 S.W.2d 747 [Insurer estimated discovery of bad faith lawsuits would have required expenditure $2.7 million and 27 person years of labor but cross examination revealed information could be provided by computer generated response. As to information available from public records "State Farm's representative testified ...computer system could be programed to produce the information sought...."]

State of Missouri v. Ely (Mo.1994), 875 S.W.2d 579 [Burden objection to prior similar claims rejected because computer database covering most of the time period. Lack of indexing preventing or inhibiting access or storage without a convenient system of retrieval is not a basis for opposing discovery.]

Williams v. Owens - Illinois (9th Cir. 1982), 665 F.2d 918, 933 [Not abuse of discretion to deny electronic documents when hard copy provided merely to save time and money and allow for ease of analysis and use. "While using cards may be more time consuming, difficult and expensive, these reasons, of themselves, do not show that the trial judge abused his discretion in denying the appellants the tapes."]

Databases and spreadsheets may be of limited value unless produced in electronic form that allows for manipulation and changes of data in fields or formula for calculations

Anti-Monopoly Inc. v. Hasbro Inc (S.D.N.Y. 1995) 1995 U.S. Dist. LEXIS 16355 [electronic documents discoverable even if hard copy provided; discoverability of computerized data is black letter law]; see also In re Honeywell Int'l. Inc. Securities Lit., 2003 US Dist. LEXIS 20602 (S.D.N.Y.)

Armstrong v. Executive Office of President(DC Cir 1993), 1 F3d 1274,1281 [Hard copy insufficient; "may omit fundamental pieces of information which are an integral part of the original electronic records, such as the identity of the sender and / or recipient and the time of receipt"; may lack other information: directories, distribution lists, acknowledgment of receipts, ]

McDowell v. Government of Dist. of Columbia  (D.D.C.2006), 233 F.R.D. 192 [February 9, 2006 initial decision. See fee award order: ]
Delay and expense incurred due to failure of defendant to make proper queries of its database resulted in an award of monetary sanctions in the amount of $ 72,910.12. The requesting party was ordered to "submit to the court a detailed report identifying the amount of attorneys' fees and costs that have been expended since February 3, 2003 in attempting to secure the PD 163's."
"Since the beginning of discovery in this case, plaintiff has sought to query CJIS for information about those arrests in which the individual named officers, while not the arresting officer, nonetheless participated in some fashion in the arrest. While defendants have repeatedly acknowledged that CJIS contains an "other officer" field, defendants only recently conceded that a query of this field can actually be performed." "...almost three years after plaintiff's first request for production of documents, defendants finally stated conclusively that data could be accessed for arrest events where the named officer was not the arresting officer." "The most obvious problem relating to the PD 163's is the fact that plaintiff will only get the relevant PD 163's if the spreadsheet is the result of a carefully worded and accurately executed query."
In the fee award order [2006 WL 1933809 (D.D.C. 7/11, 2006) , 2006 U.S. Dist. LEXIS 46371], the court noted "...the rationale underlying my decision to award attorney's fees remains the same. But for defendants' failure to comprehend the capabilities of their own record-keeping system, plaintiff would have had the discovery she sought at a much earlier date."

American Brass v. United States (CIT 1988), 699 F. Supp.934
Timken v. United States ( ), 659 F. Supp.239
Public Citizen v. Carlin (D.D.C. Oct.1997), 1997 WL 669637

Need for expert assistance & special software;

Potential for greater efficiency of cost effective discovery

Key word and concept searches of data for relevant information or files

Exclusion of files likely to contain privileged or other nondiscoverable information

New issues regarding restoration, management, sorting, searching, analyzing and reviewing data

Data Mining Tools to analyze, search, sort & calculate

Technology and electronic tools change rapidly; businesses and governments recognize both the value of data and the need to analyze and utilize it
Applications designed for business to access, analyze and use data for marketing purposes may be useful to access such data for discovery purposes
e.g.

80-20.com
CaptureIt software from Ontrack for gathering electronic data w/o business disruption
datajunction.com

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Technology changes burden vs. relevancy equation

Opponents of discovery will claim greater burden and expense due to volume, cost of retrieval, conversion, printing

Proponents of e-discovery should show cost reductions, efficiency and lack of intrusion into privileged and confidential information

State Farm v. Engelke (Tex. 1992), 824 S.W.2d 747 [Insurer estimated discovery of bad faith lawsuits would have required expenditure $2.7 million and 27 full time man years of labor but cross examination revealed information could be provided by computer generated response. As to information available from public records "State Farm's representative testified Computer system could be programed to produce the information sought...."]

State of Missouri v. Ely (Mo.1994), 875 S.W.2d 579 [Burden objection to prior similar claims rejected because computer database covering most of the time period. Lack of indexing preventing or inhibiting access or storage without a convenient system of retrieval is not a basis for opposing discovery.]

Williams v. Owens - Illinois (9th Cir. 1982), 665 F.2d 918, 933 [Not abuse of discretion to deny electronic documents when hard copy provided merely to save time and money and allow for ease of analysis and use]

Willaims v. E. I. duPont de Nemours & Co. (W.D.Ky. 1987) 119 F.R.D. 648 [expert database based on documents obtained from employer discoverable in part due to expense of recreating same]

Zubulake I  (SDNY 2003) [opinion notes that electronic storage may reduce cost of discovey ]

New problems created by ability to modify or fabricate documents create issues for authentication

See  ADMISSION OF  EVIDENCE

See R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 where plaintiff filed a complaint based on an allegedly altered contract; discovery obtained by stipulation to examine hard drive to detect alteration of contract but complaint amended conceding the version was not valid.
See Fennel v. First Step Designs Ltd. (1st Cir.1966), 83 F.2d 526 where plaintiff was denied examination of a hard drive to determine if critical memo was predated to avoid liability for wrongful discharge.

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PROFESSIONAL RESPONSIBILITY
See  DISCOVERY ETHICS
ABA Civil Discovery Standards 10 & 29 (1999)

IV. DOCUMENT PRODUCTION

10. The Preservation of Documents. When a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced, the lawyer should inform the client of its duty to preserve potentially relevant documents and of the possible consequences of failing to do so.

VIII. TECHNOLOGY

29. Preserving and Producing Electronic Information.
a. Duty to Preserve Electronic Information.
i. A party's duty to take reasonable steps to preserve potentially relevant documents, described in Standard 10 above, also applies to information contained or stored in an electronic medium or format, including a computer word-processing document, storage medium, spreadsheet, database and electronic mail.
ii. Unless otherwise stated in a request, a request for "documents" should be construed as also asking for information contained or stored in an electronic medium or format.
iii. Unless the requesting party can demonstrate a substantial need for it, a party does not ordinarily have a duty to take steps to try to restore electronic information that has been deleted or discarded in the regular course of business but may not have been completely erased from computer memory.

CEB California Civil Discovery Practice 3rd Ed Vol. 2, §8.24 p 711 (1998)

"Because of their ubiquitous nature documents stored in electronic form... should be specifically targeted by counsel in developing their discovery plans. Failing to do so may not only prejudice their case, but may also constitute malpractice."
Michael R. Overly, California Continuing Education of the Bar (1998 3d Ed), Civil Discovery Practice 3rd Ed., Vol. 2, §8.24, p. 711

Attorney obligation to acquire skills and to maintain skills or knowledge of changing technology and e-discovery techniques
Attorney's professional obligation to obtain expert assistance

Attorney may not be required to be a computer expert but must know what questions to ask. To do so, the attorney needs to know what data may exist and where it may be located. It is also important to continually update and improve knowledge of relevant technology, storage systems, and search software.

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