Discovering Electronic Evidence

Digital Data is Hard to Erase

Most people think that simply deleting a file on a computer disk will permanently eliminate that file.  More sophisticated computer users believe that overwriting the file's location on the hard drive will do the job.  Both views are wrong, and the truth is that digital data is hard to destroy.  Here's what a hacker named "NV" had to say on this issue in the Hacker Quarterly (Vol 18; No. 4, p. 42):

"The reality is that data on a hard drive, floppy drive, zip drive etc. is nearly impossible to erase.  Deleting a file and "emptying the recycle bin is only security for the lamest of lamers.  Realistically, overwriting the file many times (shredding), defragging the disk, etc. still allows the file information to be recovered with microscopy.  Even encryption is not secure, as often the swap file and slack space on the disk are unencrypted.  Now you understand why the US Navy resorted to "hammers and hatchets" to destroy data during the US/China spy plane ordeal last April."

So now that we know that digital data is hard to destroy, what does that mean for the legal regime of discovery?  Obviously it means that electronic evidence is veritable treasure trove of potential information.  And it may even include information that has been presumably destroyed under a document non-retention policy.

Judicial Protocols for Electronic Discovery

A few years ago, judges might be reluctant to allow a party to litigation to have access to computer records, at least not without a very compelling reason.  Judges are still wary of overbroad requests for electronic evidence, but, as judges become more familiar with electronic evidence issues, and as they become more prevalent, there is more jurisprudence on this issue.

In Rowe Entertainment, Inc. v. The William Morris Agency, 2002 WL 63190 (S.D.N.Y. January 16, 2002) the issue was whether a party could have access to backup tapes for a company's E-mail messages.  The Court adopted an approach that required evaluation of eight factors, and these factors were used to determine if the discovery costs should be shifted to the requesting party.

1. the specificity of the requests
2. the likelihood of discovering the critical information
3. the availability of the information from other sources
4. the purpose for which the responding party maintains the data
5. the relative benefit to the parties of obtaining the data
6. the total cost associated with the production
7. the relative ability of each party to control costs and its incentive to do so; and
8. the resources available to each party

The court also considered the question of what to do about information that was possibly privileged.  The court set forth a protocol to deal with that problem, including apointing a neutral expert in charge of the production of electronic evidence.  A similar decision was reached by the trial court in Murphy Oil USA v. Fluor Daniel, Inc., 2002 WL 246439 (E.D.La. Feb. 19, 2002).

See also Adobe Systems, Inc. v. Sunday South Prod., 187 F.R.D. 636 (S.D. Cal. 1999).

Electronic Documents sent to Experts are Discoverable

Most lawyers know all documents presented to, or reviewed by, testifying experts are discoverable.  They might not think that E-mail messages are discoverable, but that would be a mistake.  In USF&G v. Braspetro Oil Co., 2002 WL 15652 (S.D.N.Y. January 7, 2002) the court ordered a party to produce everything that had been given to its experts, privileged or unprivileged, and regardless of whether in paper or electronic form.

Electronic Versions Ordered Produced Where Paper Files are Incomplete

In a dispute between a construction contractor and the City of Evanston, the court denied Evanston's broad request for access to both paper and electronic versions of certain computer files.  However, once it was shown that the defendant's paper productions were incomplete the court ordered the defendant to produce computer files to establish that it had in fact produced all of the relevant information.  McNally Tunneling v. City of Evanston, 2001 WL 1568879 (N.D. Ill. Dec. 10, 2001).

Perhaps you have to produce though it is burdensome

In Sattar v. Motorola, 138 F.3d 1164 (7th Cir. 1997) the plaintiffs requested printed copies of a large number of emails (i.e. over 200,000).  The plaintiffs claimed that they were unable to read the electronic files, whereupon the court ruled that the defendants had to either provide the plaintiffs with the equipment needed to read the electronic files, or pay for half of the costs of creating hard-copy printouts of the emails.

Sanctions for Spoilation of Electronic Evidence

In RKI Inc. v. Grimes ___ F. Supp. ___ 2001 WL 1654536 (N.D. Ill. Dec. 21, 2001), an employer sued its former employee for trade secret misappropriation.  The former employee apparently defragmented his home computer in an attempt to prevent the employer from learning that he had confidential information on the computer.  As we have learned, digital information is persistent and hard to destroy.  So the employee's ploy was discovered and he was ordered by the court to pay his former employer $100,000 in compensatory damages and $150,000 in punitive damages.

See also Gates Rubber Co. v. Bando Chemical Ind. 167 F.R.D. 90 (D. Colo. 1996), In re Prudential Ins. Co. Sale Practices Litigation, 169 F.R.D. 598 (D.N.J. 1997), and Proctor & Gamble Co. v. Haugen, 179 F.R.D. 622 (D. Utah 1998).

If documents are in electronic form perhaps that should be disclosed

In In re Bristol Myers Squibb Securities Litigation, 205 F.R.D. 437 (D.N.J. 2002), the defendants offered to provide the plaintiffs with hard copies at 10 cents a page.  Plaintiffs agreed, but were shocked when they got the bill.  The defendants offered to make the documents available in digital form if the plaintiffs would split the $200,000 cost of scanning.  The court forced the defendant to produce the electronic records, and to help cover some of the plaintiffs' costs.  The court was put off by the defendant's failure to state upfront that the documents were already in digital form.

Duty to preserve electronic information?

Playboy Enterprises v. Welles, 60 F. Supp. 1050 (S.D. Calif. 1999) (rev'd on another issue at 279 F.2d 796) held that information on a parties' hard drive was discoverable if it would not be unduly burdensome.

Companies that Help Lawyers Discover Electronic Evidence

FIOS - was featured in the ABA Law Practice Management Magazine - Ph #877-700-3467 - WebSite www.fioinc.com

More information on Electronic Discovery

Is available from the ABA via a 60 minute audiotape entitled "Discovery and the Internet".  The price is $150, and can be ordered by calling 800-285-2221, or visiting this link and entering product code L02DINA.

Roundup of Articles on Electronic Discovery

Denise Howell, an attorney in Los Angeles, has gathered a wonderful assemblage of online articles on electronic evidence (even pointing to this one, so don't loop back here). 

Last update: 6/5/2003; 10:08:04 PM.