Vol. 77, No. 7, July
Electronic Evidence in the 21st Century
While existing rules of civil procedure and evidence have been used
with some success to manage the electronic revolution to date, they
don't go far enough. The author calls for a comprehensive revision of
these rules to take into account the many ways electronic evidence is
different from paper evidence. Read what counsel can do now until
fundamental changes are made.
by William C. Gleisner III
It is refreshing to be able to cite authorities from the last century
... and to experience the rare and unusual assurance that, in some
ways, the law changes slowly or not at all."1
When it comes to electronic evidence, it seems that "the law changes
slowly or not at all." The bench and bar have for the most part elected
to deal with electronic evidence by subjecting it to rules that were
created to solve the problems of a paperbound world. While the existing
rules of civil procedure and evidence have been used with some measure
of success to manage the electronic revolution to date, we must
fundamentally modify our procedural and evidentiary rules so that they
are responsive to our electronic world. This article only addresses
electronic evidence in civil proceedings.
Because of the pervasiveness of electronic data, a piecemeal approach
to making the needed changes will not do. We also should not wait for
the common law to afford solutions. Many of the issues regarding
electronic evidence are complicated and technical, and individual courts
working through the common law cannot be expected to retain the
technical experts or engage in the probing technical analysis needed to
develop consistent responses to all of the many problems electronic
evidence presents today. We must have uniform and consistent rules that
are developed after thoughtful deliberation by respected institutions
that understand the legal issues and can afford to retain the needed
technical advisors. The rules that are adopted should be based upon and
informed throughout by sound technical analysis.
What is needed is a national conference comparable to but more
comprehensive than the National Conference of Commissioners on Uniform
State Laws (NCCUSL) that produced the Uniform Commercial Code
(UCC).2 The time has come for the American
Bar Association, the Judicial Conference of the United States,3 state institutions such as the Wisconsin Judicial
Council,4 law schools, and other "think
tanks" to come together to undertake a comprehensive revision of the
rules of both civil procedure and evidence to take account of the many
ways in which electronic evidence is unique and is different from paper
evidence. Just in terms of the rules of civil procedure governing
electronic discovery, Chief Justice Shirley Abrahamson recognized the
need for such an undertaking in a concurring opinion of a case that was
decided just before this article went to press.
"I also write to comment on the issue of production of electronic
information. ... In 2004, most information is kept in digital form,
and discovery, preservation, and production of electronic information is
one of the leading legal issues facing not only corporate America but
also government. Reform in discovery, including electronic discovery, is
a priority.... This court has not previously confronted the issue of
discovery of electronic data. ... The volume, number of storage
locations, and data volatility of electronically stored information are
significantly greater than those of paper documents. In addition,
electronic information contains non-traditional types of data including
metadata, system data, and `deleted' data. Furthermore, the costs of
locating, reviewing, and preparing digital files for production may be
much greater than in conventional discovery proceedings. ... The
majority opinion does not recognize the special problems [regarding the]
production of electronic information or give guidance to the judge or
the parties about these unique issues."5
This article addresses some of the changes that ought to be
considered by a national conference. The article also addresses what
counsel can do until fundamental changes are made in our rules of civil
procedure and evidence. Given the present paperbound rules, defense
counsel must devise ad hoc workable, cost effective, and defensible
guidelines for determining which items of electronic evidence must be
preserved and by what means. Defense counsel also need to determine how
they will search for electronic evidence, produce what is reasonable,
and resist requests that are unreasonable. Plaintiffs, on the other
hand, need to develop strategies within the context of the present
paperbound rules for discovering electronic evidence and laying a proper
foundation for its use and admissibility at trial.
Electronic Evidence Is Indeed Different
One think tank, the Sedona Conference (the Conference),6 has begun to address electronic evidence in a
comprehensive fashion, and its work can serve as a template for
revisions in the rules of civil procedure and evidence. The Conference
has recently issued a report, The Sedona Principles: Best Practices,
Recommendations & Principles for Addressing Electronic Document
Production (January 2004),7 in which
the authors identify characteristics that make electronic evidence
different from paperbound evidence.
The many qualitative and quantitative differences between producing
electronic documents and producing paper documents can be grouped into
six broad categories:
1) Volume and Duplicability. There are vastly more
electronic documents than paper documents, and electronic documents are
created at a much greater rate than paper documents.
2) Persistence. Electronic documents are more
difficult to dispose of than paper documents. This persistence of
electronic data compounds the rate at which electronic data and
documents accumulate and results in the existence of an entire subset of
electronic data that may be unknown to the individuals with ostensible
custody over it.
3) Dynamic, Changeable Content. Computer
information, unlike paper, has dynamic content that is designed to
change over time even without human intervention.
4) Metadata. Electronic documents, unlike paper,
contain information about the document or file that is recorded by the
computer to assist in storing and retrieving the document or file at a
5) Environmental Dependence and Obsolescence.
Electronic data, unlike paper data, may be incomprehensible when
separated from its environment.
6) Dispersion and Searchability. While an employee's
paper documents will often be consolidated in a few filing cabinets, the
employee's electronic documents could reside in many locations: desktop
hard drives, laptop computers, network servers, floppy disks, and backup
Courts Lack Rules and Consistency for the Electronic Revolution
Some local courts have adopted creative rules and well-thought-out
decisions to deal with the electronic revolution.9 However, most courts have struggled with
electronic data, seemingly trying to put a square peg in a round
Courts are not unaware of the importance of the electronic world;
however, their responses only address a part of the problem and there
are no consistent efforts to come to terms with the electronic
Many courts strive to make documents and case information available
online. For example, the Wisconsin Supreme Court makes appellate
information available via its WSCCA.1 Web site10 and trial court information is available via the
Wisconsin Circuit Court Access system (CCAP).11 On the federal level, electronic records can be
retrieved via the PACER system.12 It's also
true that some courts, such as the U.S. District Court for the Western
District of Wisconsin,13 supply lawyers
with user friendly courtroom technology and encourage the use of
electronic evidence and the filing of briefs and other documents
electronically. Some courts, such as the U.S. District Court for the
Northern District of Ohio, insist that all documents must be filed
electronically unless good cause is shown why that isn't
possible.14 Many courts, however, do not
address the issue of electronic documents in their rules.15
What is missing are consistent, comprehensive standards and sets of
local and national rules that deal with electronic evidence. True, there
does appear to be a recognition that change is necessary. The ABA has
created an Electronic Discovery Task Force16 and has made some tentative efforts to draft
electronic discovery standards.17 The
Judicial Conference of the United States, which is charged with revising
the Federal Rules of Civil Procedure and Evidence,18 has begun to study aspects of electronic
litigation.19 While the Judicial Conference
is aware of the Internet's impact on the courts,20 however, it appears that the Judicial Conference
only intends to modify some of the Rules of Civil Procedure governing
electronic discovery, and any proposed rules will not even be available
for public comment until late summer 2004.21 There is no indication that the Judicial
Conference intends to address rules governing the admissibility of
The Sedona Conference Model
As noted above, there is one bright spot on the horizon and that is
the Sedona project. The Sedona Principles22
contain an excellent and thoughtful discussion of electronic document
management, and they could well serve as a basis for a comprehensive
re-evaluation of the rules of civil procedure and evidence. The primary
shortcoming of the Sedona approach is its tacit acceptance of the status
quo paperbound rules.
There are too many ways in which the current rules of civil procedure
and evidence simply do not meet the needs of an electronic universe.
Rather than analogizing from existing rules, the often novel issues
presented by electronic litigation should be directly addressed.
Admissibility of Electronic Evidence. In terms of
the rules of evidence, from the introduction of previously arcane global
positioning system (GPS) tracking devices23
to the introduction of the metadata24 from
electronic email, the courtroom will be a very different place in coming
Some evidentiary rules already contain references to electronic
documents. For example, Wis. Stat. section 910.01(3) specifies that an
"original" writing includes "data ... stored in a computer or
similar device, any printout or other output readable by sight, shown to
reflect the data accurately. ..." The foregoing is just a token
acknowledgement of the electronic universe. From a careful reading of
the online Sedona materials and given the unique nature of electronic
evidence, one can infer that a number of revisions to the rules of
evidence ought to be considered with respect to the following issues
(due to space limitations, only the Wisconsin Rules and not their
federal counterparts or existing federal gloss are discussed).
- What is the evidentiary status of electronic document metadata? What
is the evidentiary status of email components, such as headers and
- Can a public record be proved within the meaning of Wis. Stat.
section 910.05 merely because it appears on a public Web site?
- How are voluminous electronic documents to be summarized within the
meaning of Wis. Stat. section 910.06?
- What constitutes "personal knowledge" or "lay opinion" under Wis.
Stat. sections 906.02 and 907.01, when dealing with information that has
been derived from email or other computerized communications?
- Under what circumstances is an email or some other electronic
document a present sense impression, an excited utterance, or a recorded
recollection within the meaning of Wis. Stat. section 908.03?
- Should Wis. Stat. section 908.01 be modified to make it clear when
email and other electronic documents are to be construed as admissions
by party opponents (or statements against interest) within the meaning
of Wis. Stat. section 908.045(4)?
- Under what circumstances are computer data collections considered
records of regularly conducted activity within the meaning of Wis. Stat.
section 908.03(6)? Under what circumstances is the absence of an entry
in a computer record admissible under Wis. Stat. section 908.03(7)?
- What is the status under Wis. Stat. section 908.03(17) and (18) of
market reports, commercial publications, and learned treatises that are
- What is the status of Web sites and information contained on Web
sites, particularly public Web sites, under, for example, Wis. Stat.
- Is hearsay within hearsay possible under Wis. Stat. section 908.05
in the case of email?
- How does one handle attacks on and support the credibility of a
declarant within the meaning of Wis. Stat. section 908.06 when the
hearsay statement is contained in an email?
- Can public documents, official publications, newspapers, commercial
paper, and related documents located on Web sites be self-authenticated
under Wis. Stat. section 909.02? Can health care records that are made
available on a Web page be self-authenticated under Wis. Stat. section
- Within the meaning of Wis. Stat. section 910.04, how are duplicates
or copies in the possession of the opponent handled when they are
- In addition to the provisions of Wis. Stat. section 910.01(3),
mentioned above, should other examples of authentication or
identification be added to Wis. Stat. section 909.015 (such as Internet
service provider IDs, email header information, router information, and
- How do we deal with facts or data relied upon by an expert under
Wis. Stat. section 907.03, when they are located on transient Web sites
or other transitory electronic data or are based on volumes of unindexed
or poorly indexed electronic data? What are the standards for forensic
computer experts' testimony,25 and when
should the court call upon the services of a court-appointed computer
expert under Wis. Stat. section 907.06?
- What is the status of computer-generated records that contain the
output of computer programs, untouched by human hands, such as log-in
records from Internet service providers, telephone records, and ATM
receipts? In such a case, should the rules be modified because the
evidentiary issue is no longer whether a human's out-of-court statement
was truthful and accurate (a question of hearsay), but instead whether
the computer program that generated the record was functioning properly
(a question of authenticity)?26
- In email communications, at what point and under what circumstances
does the lawyer-client privilege attach within the spirit of Wis. Stat.
- Are there any circumstances within the spirit of Wis. Stat. section
902.01 in which a judge may take judicial notice of information posted
on Web sites, particularly public sites?
- What role should circumstantial evidence play in establishing the
authorship and authenticity of a computer record?
- How does one establish that computer business records should be
admissible because a) they are kept pursuant to a routine procedure
designed to assure their accuracy; b) they are created for motives that
tend to ensure accuracy (for example, not including those prepared for
litigation); and c) they are not themselves mere accumulations of
Discovery of Electronic Evidence. Again, the rules
of civil procedure governing discovery already contain some references
to electronic documents. For example, Wis. Stat. section 804.09(1)
specifies that a request to produce documents shall be construed as
applying to "writings, drawings, graphs, charts, photographs,
phono-records, and other data compilations from which information can be
obtained, translated, if necessary, by the respondent through detection
devices into reasonably usable forms." Carefully thought out revisions
to the rules of civil procedure governing discovery must be considered
because several courts have expressed frustration with existing
solutions to the problem of electronic discovery. For example, the court
made the following observation regarding efforts to discover an
adversary's computer backup tapes in McPeek v. Ashcroft27:
"There is certainly no controlling authority for the proposition that
restoring all backup tapes is necessary in every case. The Federal Rules
of Civil Procedure do not require such a search, and the handful of
cases are idiosyncratic and provide little guidance. The one judicial
rationale that has emerged is that producing backup tapes is a cost of
doing business in the computer age. ... But, that assumes an
alternative. It is impossible to walk ten feet into the office of a
private business or government agency without seeing a network computer,
which is on a server, which, in turn, is being backed up on tape (or
some other media) on a daily, weekly or monthly basis. What alternative
is there? Quill pens?"28
One of the chief complaints of defendants is that expansive
electronic discovery imposes an unfair burden on them. Defendants claim
that the cost of extensive electronic discovery should be shifted from
them to the plaintiff. In Zubulake v. UBS Warburg LLC,29 the court stated: "[C]ost-shifting should be
considered only when electronic discovery imposes an `undue burden or
expense' on the responding party. The burden or expense of discovery is,
in turn, `undue' when it `outweighs its likely benefit, taking into
account the needs of the case, the amount in controversy, the parties'
resources, the importance of the issues at stake in the litigation, and
the importance of the proposed discovery in resolving the
The Zubulake court proceeded to analyze the requested
electronic evidence in terms of accessibility, a task that would have
been made much easier if the discovery rules spelled out in some detail
what is and what is not "accessible data" for discovery purposes. The
court stated that the following standards should be considered when a
defendant requests cost-shifting in the case of electronic
- The extent to which the request is specifically tailored to discover
- The availability of such information from other sources;
- The total cost of production, compared to the amount in
- The total cost of production, compared to the resources available to
- The relative ability of each party to control costs and its
incentive to do so;
- The importance of the issues at stake in the litigation; and
- The relative benefits to the parties of obtaining the
Other courts have been forced to create their own sets of similar
guidelines from whole cloth.32 Courts and
counsel need new, comprehensive discovery rules. As noted above,
Wisconsin Chief Justice Abrahamson has recently said as much. The
general scope of the type of needed discovery rules appears in the next
section of this article.
How Should a Defendant Prepare for and Respond to Electronic
Given the present paperbound status of discovery rules, a defendant
will find little consistent guidance in either federal or state case
law. However, defendants would be well advised to carefully study the
Sedona Principles,33 discussed
earlier. The Sedona authors (consisting mainly of lawyers and
corporations concerned with antitrust, complex litigation, and
intellectual property rights), have distilled their primary principles
into a single page.34 However, the Sedona
Principles are annotated in a detailed 40-page exposition35 that can be used by any defendant as a basis for
coming to grips with electronic discovery issues, at least until the
courts create definitive rules. These principles could also form the
starting point for a comprehensive set of discovery rules. The
principles are set forth here so that defense counsel can appreciate
their breadth and comprehensiveness.
The Sedona Principles
- Electronic data and documents are potentially discoverable under
Fed. R. Civ. P. 34 or its state law equivalents (in Wisconsin, Wis.
Stat. section 804.09(1)). Organizations must properly preserve
electronic data and documents that can reasonably be anticipated to be
relevant to litigation.
- When balancing the cost and burden of and need for electronic data
and documents, courts and parties should apply the balancing standard
embodied in Fed. R. Civ. P. 26(b)(2) and its state law equivalents,
which require considering the technological feasibility and realistic
costs of preserving, retrieving, producing, and reviewing electronic
data, as well as the nature of the litigation and the amount in
- Parties should confer early in discovery regarding the preservation
and production of electronic data and documents when these matters are
at issue in the litigation and seek to agree on the scope of each
party's rights and responsibilities.
- Discovery requests should make as clear as possible what electronic
documents and data are being asked for, while responses and objections
to discovery should disclose the scope and limits of what is being
- The obligation to preserve electronic data and documents requires
reasonable and good faith efforts to retain information that may be
relevant to pending or threatened litigation. However, it is
unreasonable to expect parties to take every conceivable step to
preserve all potentially relevant data.
- Responding parties are best situated to evaluate the procedures,
methodologies, and technologies appropriate for preserving and producing
their own electronic data and documents.
- The requesting party has the burden on a motion to compel to show
that the responding party's steps to preserve and produce relevant
electronic data and documents were inadequate.
- The primary source of electronic data and documents for production
should be active data and information purposely stored in a manner that
anticipates future business use and permits efficient searching and
retrieval. Resort to disaster recovery backup tapes and other sources of
data and documents requires the requesting party to demonstrate need and
relevance that outweigh the cost, burden, and disruption of retrieving
and processing the data from such sources.
- 9) Absent a showing of special need and relevance, a responding
party should not be required to preserve, review, or produce deleted,
shadowed, fragmented, or residual data or documents.
- A responding party should follow reasonable procedures to protect
privileges and objections to production of electronic data and
- A responding party may satisfy its good faith obligation to preserve
and produce potentially responsive electronic data and documents by
using electronic tools and processes, such as data sampling, searching,
or the use of selection criteria, to identify data most likely to
contain responsive information.
- Absent agreement of the parties or order of the court, there is no
obligation to preserve and produce metadata unless it is material to
resolving the dispute.
- Absent a specific objection, agreement of the parties, or order of
the court, the reasonable costs of retrieving and reviewing electronic
information for production should be borne by the responding party,
unless the information sought is not reasonably available to the
responding party in the ordinary course of business. If the data or
formatting of the information sought is not reasonably available to the
responding party in the ordinary course of business, then, absent
special circumstances, the costs of retrieving and reviewing such
electronic information should be shifted to the requesting party.
- Sanctions, including spoliation findings, should only be considered
by the court if, upon a showing of a clear duty to preserve, the court
finds that there was an intentional or reckless failure to preserve and
produce relevant electronic data and that there is a reasonable
probability that the loss of the evidence has materially prejudiced the
As mentioned above, the main deficiency in the Sedona approach is its
assumption that no new rules are needed to deal with electronic
discovery. In fact, new electronic discovery rules are needed
desperately, and the above Sedona principles and recent case law (such
as Zubulake) can be used as a foundation for creating such
How Should a Plaintiff Prepare for and Conduct Electronic
The author wishes to provide both practice tips and suggested
discovery 32 KB for use by
plaintiffs when conducting electronic discovery.
First, a word of caution to the plaintiffs' bar; today, the ability
to conduct electronic discovery is not just useful. The failure to
conduct electronic discovery in a wide variety of cases is very likely
to lead to charges of professional negligence.36 Unfortunately, many plaintiffs' litigators still
think of litigation and discovery in terms of a "paper chase." The world
is going electronic, however, and chasing paper will soon lead
plaintiffs' litigators down a road marked by missed opportunities,
overlooked smoking guns, disappointed clients, and malpractice; the days
of the dinosaur litigator are numbered.37
Even where information exists primarily in hard copy, in today's word
processing world there undoubtedly are electronic copies or drafts of
that hard copy that tell an interesting story about its history.
William C. Gleisner III, Marquette
1974, is a former officer and member of the Board of Directors of the
Wisconsin Academy of Trial Lawyers. He currently serves as chairperson
of the Academy's Amicus Curiae Committee. He practices in Milwaukee as
Of Counsel to the law firm of Kersten & McKinnon and has an
extensive background in both state and federal litigation. Mr.
Gleisner's focus for the past six years has largely been on the
technical and legal aspects of obtaining, organizing, and managing
electronic evidence. He has provided computerized litigation support and
"of counsel" assistance to several law firms throughout the United
States, helping them to plan, formulate, and execute electronic
discovery strategy. He is a Summation Certified Trainer, and formerly
was both a Microsoft Certified Systems Engineer and a Citrix Certified
Copyrighted 2004, William C. Gleisner, III. All rights reserved.
Electronic discovery should be seriously considered in many types of
litigation, including: products liability; negligence actions involving
misuse of products;38 medical malpractice
or other professional negligence actions; insurance bad faith
litigation; negligence or discrimination litigation against municipal
corporations; investment negligence or fraud litigation; dealership
disputes under Wis. Stat. chapter 135; other business tort litigation;
and Title VII, ADA, or 42 U.S.C. section 1983 litigation. In fact, any
time documentary evidence is likely to exist in an electronic form, you
should consider conducting electronic discovery.
A Plaintiff's Electronic Discovery "Laundry List"
Most plaintiffs' litigators operate on a tight budget. Nevertheless,
there are several steps that will enhance the chances of uncovering the
existence of electronic evidence and forcing its disclosure without
breaking your budget. Plaintiffs' trial attorneys may wish to consider
1) Send out a letter before or immediately after a lawsuit is
commenced demanding that all electronic evidence be segregated and
preserved. If there is reason to believe the demand will not be complied
with, seek a protective order under Wis. Stat. section 804.01(3).
2) Before the lawsuit is commenced, preserve evidence that exists on
any corporate Web site by downloading its contents to the authoring
version of Adobe Acrobat®.39
3) Early in a lawsuit, serve interrogatories that seek just
information about the defendant's computer systems. These
interrogatories should seek to carefully define possible sources of
electronic evidence and inquire whether those sources exist on a
defendant's computer system and where they are stored. Also inquire as
to what software programs the defendant is using (including all of the
technical specifications regarding the same), and request the user and
administrator manuals for all relevant software that are not available
4) Learn who does the computer work for a corporate defendant (that
is, its information service ["IS"] officers) by use of the foregoing
interrogatories or through a Wis. Stat. section 804.05(2)(e) deposition
(equivalent to an F.R.C.P. 30(b)(6) deposition). After discovering who
did and/or does the computer work for a defendant, depose those
5) Serve a second set of interrogatories that seeks disclosure of
facts and evidence, and include in that set a separate section that
specifically seeks disclosure of relevant electronic evidence. When you
seek electronic discovery, ask that any evidence that exists in
electronic format be provided to you just as it exists in the
defendant's computer systems. This may occasion some battles relating to
format, metadata, privilege, convenience, and cost. So, you might
postpone insisting on productions in native format until you have
reviewed what the defense is willing to give you without a battle.
However, ideally you want evidence that exists electronically to be
provided in the native electronic format if at all possible, instead of
just receiving hard copies or .pdf40 or
.tiff41 versions of the evidence.
a) Review all evidence received, in hard copy or in electronic
format, quickly (to avoid charges that you have slept on your rights) so
that you can make follow-up requests for a native format production if
b) Evidence that is provided in .pdf or .tiff format is a good start
(and will provide you with a good deal of flexibility in dealing with
electronic evidence) if it is organized and labeled so that you can
import it into a text and file indexer, such as the DT-Search indexer
discussed below. When you receive evidence in .pdf or .tiff
formats, review it quickly to determine: i) if it is responsive to your
discovery requests; and ii) if it is labeled in a manner that will
enable you to index it in a meaningful way.
c) If the case is important enough, don't settle for email
productions in hard copy or .pdf format. Seek to get the metadata42 that is associated with email productions. If
you don't have the email program that was used to send and receive the
discovered email and if it is not available commercially, make a demand
for a copy of the software.
6) Once you have obtained electronic evidence, you will need to
organize and manage it so you can easily search and retrieve
information. You can use high-end and expensive programs such as
Concordance®, Summation®, or Trial
Director® to accomplish this task, or you can use a
relatively inexpensive program like DT-Search®. 43
7) If you can make a credible demonstration that crucial electronic
evidence is being withheld, you may wish to seek sanctions. The federal
courts have relatively extensive experience with sanctions for failures
to allow electronic discovery. Some examples of cases in which sanctions
have been successfully sought in the context of an electronic discovery
dispute are discussed in the sidebar "Sample Motion for Sanctions for
Failure to Produce Evidence."
8) If you believe significant electronic evidence exists that is
being withheld from you and "the game is worth the candle," then you may
wish to retain a forensic computer expert to help you pursue more
discovery. Such a move is expensive and should only be considered if you
really believe there is buried evidence.44
9) If the case is big enough, you may also wish to seek on-site
inspection of a defendant's computer system and, possibly, the
appointment of a special master or court-appointed expert witnesses who
can independently inspect the defendant's system.45 Federal courts have a procedure for setting up
such inspections, and you may want to rely on federal authority46 to argue that you should be allowed to have such
an inspection conducted in state court.
The Duty of a Defendant and Its Counsel to Avoid Spoliation
Writing a letter or otherwise putting a defendant on notice of your
intention to seek electronic discovery is not an idle gesture.
Spoliation is the destruction of or failure to preserve and protect
evidence.47 A party has the duty to protect
and preserve evidence once it is on notice that it must do so.48 A court may well order the preservation of
computerized data during the pendency of a lawsuit.49 Spoliation of electronic evidence can have very
severe consequences.50 Courts have held
that a party may be under a duty to prevent spoliation even if
litigation is only reasonably anticipated.51
Related to spoliation is the issue of incomplete or inaccurate
responses to discovery requests. A sidebar accompanying this article
contains a discussion from one of the author's briefs in support of a
successful motion for sanctions for failure to produce accurate and
complete electronic evidence in a significant products liability
Interrogatories Seeking Computer System Information
If you suspect the existence of electronic evidence, you should serve
initial interrogatories that seek only information about the nature of
the environment in which that evidence resides. These interrogatories
should include questions about the defendant's computer system and the
names, addresses, and so on, of people who are responsible for managing
the various parts of the defendant's computer system (for example, the
webmaster, the network administrator, and/or the email administrator).
These initial interrogatories seeking information about a defendant's
computer system are only as good as the definitions section of the
interrogatories.52 When creating the definitions section, one
may wish to consider using definitional language similar to that located
of Computer Information - Definitions 104
KB." This definition section is intended to specify as much as
possible the elements of a defendant's computer system in which you may
have an interest.
In preparing interrogatories seeking information about the
defendant's computer system, keep in mind that there may be several
things you don't know about the defendant's computer system, and that
you can't begin to ask intelligent questions regarding electronic
evidence until you have educated yourself. Therefore, it is crucial that
you request user and administrator manuals that the defendant uses in
administering its computer system.
Suggested Interrogatories and Requests to Produce Information about
a Defendant's Computer System
Interrogatories Regarding the Defendant's Computer System" 46 KB, you will find some of the interrogatories
seeking information about a defendant's computer system that this author
prepared recently for use in products liability actions. They are not
complete, and they need to be revised to reflect the facts of each case,
but they may provide you with some ideas for your own
Interrogatories Seeking Discovery of Electronic Evidence
If you think there is relevant electronic evidence, don't hesitate to
seek its production just because you have been provided with hard copy
versions of that evidence; delay can result in a denial of a later
motion to compel discovery.53 When you seek
discovery of electronic information, you should: 1) provide a very
specific and detailed request that includes a statement of why the
information is important to your case;
2) expressly request electronic documents by type; and 3) specify the
production format that you seek. For example, if you have a good reason
to obtain evidence in .pdf or .tiff format, ask for the evidence in that
format.54 Based on the author's experience,
you should seek to obtain electronic evidence in its native format.
You can expect resistance when you seek to obtain electronic evidence
in its native format (as opposed to .pdf or .tiff format). Defendants
may claim that it is burdensome for them to review all electronic
productions for privileged information or metadata, and may even claim
that they have an ethical duty not to disclose information in native
format.55 That is why you must go to
considerable pains to review the information that is furnished to you in
hard copy, .pdf, or .tiff formats before seeking a native format
production. You need to be in a position to make a credible argument to
the court that there may be hidden information or other metadata that
you can only discover by seeing the data in its native format. Of
course, unless you are prepared to spend serious money on forensic
computer experts, don't carry the metadata argument too far;56 certain metadata and hidden files, such as
deleted text,57 can only be pursued and
analyzed meaningfully with the aid of a forensic computer expert.
After you have carefully reviewed the evidence that the defendant has
furnished willingly, and if it appears suspicious, ask that it be
produced in its native format just as it exists in the defendant's
computer systems. There is older authority that supports such a request.
In DCA Inc. v. Resorts International,58 the court stated:
"The party who is offering [business] records for investigation in
lieu of answering an interrogatory should offer them in a manner that
permits the same direct and economical access that is available to the
As to all requests for electronic evidence, be certain to request
that the defendant specifically state which interrogatory is answered by
which piece of evidence.
"It is not sufficient to speculate that an answer may be available
[from a mass production of business records]. This is little more than
an offer to play the discredited game of blind man's bluff at the
threshold level of discovery."60
It is not necessary to separate out interrogatories seeking
electronic evidence from interrogatories seeking other issue- and
fact-specific information. However, when you request information in
electronic format, specify that fact. Also, in the definitional section
of such interrogatories, it is a good idea to specify what you will
accept if the electronic evidence is produced on CD or DVD. For example,
one might include the specification with respect to CD or DVD production
of discovery contained in "Model Discovery Standards," available with
this article online.
Suggested Interrogatories and Requests to Produce Electronic
"Requests to Produce Information from Databases or Similar Sources"
(available with this article online) contains some of the
interrogatories this author has used specifically seeking electronic
evidence from a defendant's computer system. They are not complete, and
they need to be revised to reflect the facts of each case, but they may
help you in preparing your interrogatories.
Interrogatories Seeking Production of Copies of Email Messages
Defendants will make strong and persuasive arguments about privileged
information that is intermingled among discoverable email. This is
because email doesn't come in a set of directories such as one finds in
Windows. Like Access files, email lives within a metadata environment
that cannot easily be split into small parts. In most cases, email will
be contained in Microsoft Outlook or Outlook Express, and to obtain and
search all of a defendant's emails you will need to seek production of
what is called a .pst file.61 In any case,
when it comes to the production of email in its native environment, you
will almost certainly need the services of a forensic computer expert if
you are going to seek to search or access a defendant's full email
records. Beware; battles over email production are extremely expensive,
and you could easily find yourself on the wrong end of an award of costs
if your request appears burdensome.62
Once you have reviewed the emails that are furnished to you in hard
copy or in .pdf format, and if you find several that are particularly
interesting, you may wish to consider asking to see just those emails in
their native format so you can inspect their metadata. With the help of
a forensic expert, it should be possible to instruct the defense to
segregate selected Outlook Express email into separate folders and then
export it to removable media as a split .pst file that can then be
imported into your version of Outlook or Outlook Express.
Protective and Pull Back Orders
For many savvy defendants, particularly large national or
international defendants, the first defense to any electronic discovery
request is a demand for a protective order. Often disguised as the
defendant's effort to protect trade secrets, the goal is to limit the
scope of discoverable information and to place plaintiffs in a box that
will prevent them from discussing their case with other plaintiffs who
have similar cases.
Obviously, the less restrictive such a protective order is the
better. One argument is to point out that the plaintiffs have just as
much right to communicate with similarly situated plaintiffs as do the
many defense counsel that represent a large national defendant. In a
state court action, one should insist on strict adherence to the
requirements for a protective order set forth in Wis. Stat. section
804.01(3), especially the provisions of 804.01(3)(a)7.
Defendants also may try to protect themselves by requesting a "pull
back" stipulation and order. Under a "pull back" stipulation and order,
a defendant seeks to have an agreement in advance that if a privileged
document is inadvertently produced, the defendant may call it back and
the plaintiffs' counsel cannot use it or rely on it in any way. On the
face of it, this appears to be a defensible practice, because defendants
will argue that there is no way they can go through every email or
electronic document before it is produced searching for privileged
material. However, the Wisconsin Supreme Court recently held that "[a]
lawyer, without the consent or knowledge of a client, cannot waive the
attorney-client privilege by voluntarily producing privileged documents,
which the attorney does not recognize as privileged, to an opposing
attorney in response to a discovery request."63
As Chief Justice Abrahamson recently recognized, electronic evidence
is unique and requires new rules and procedures. Piecemeal solutions and
inconsistent common law decisions only complicate the difficulties
presented by electronic evidence. What is needed is a comprehensive
overhaul of the rules of evidence and civil procedure, both in Wisconsin
and throughout the country. Until such an overhaul, both counsel and the
courts need to carefully consider the unique nature of electronic
evidence when deciding on its admissibility and use during trial.
Moreover, until such a comprehensive overhaul occurs, counsel must
devise ad hoc guidelines and procedures that will ensure the
preservation and production of electronic evidence in a manner that is
fair, reasonable, and cost effective.
1Quick v. State, 569 So.
2d 1197, 1199 (Miss. 1990).
2Cf. Lockhart & Miles,
Proposed UCC Article 2 Revisions Embrace Paperless Electronic
Transactions, 75 Mich. B. J. 516 (1996).
infra. The Judicial Conference is responsible for creating or
amending federal rules of civil procedure and evidence and acts pursuant
to 28 U.S.C. § 331.
4The Wisconsin Judicial Council
proposes rule changes to the Wisconsin Supreme Court pursuant to Wis.
Stat. section 758.13.
5Custodian of Records for the
Legislative Tech. Servs. Bureau v. State, 2004 WI 65, ¶¶
60-62, 64, __ Wis. 2d __, __ N.W.2d __.
copyrighted PDF copy of the Sedona Principles accompanies this article
online at www.wisbar.org/wislawmag/2004/07/gleisner.html
[hereinafter Sedona Principles].
8Id. at 3-5.
9See the Feb. 13, 2004, Guidelines
for Electronic Discovery of the U.S. District Court of Kansas, set forth
in the appendix to the law review article by Waxse, "Do I Really
Have to Do That?" Rule 26 (a)(1) Disclosures and Electronic
Information, 10 Richmond J. L. & Tech. 50 (Spring 2004).
15This is particularly true of
state court systems. However, many federal courts also lack local rules
or guidelines governing the admissibility or discovery of electronic
evidence. See, e.g., the Local Rules for the Eastern District
of Wisconsin, http://www.wied.uscourts.gov/Local_Rules_New.htm
(although the Eastern District has guidelines for electronic
Judicial Conference procedures for proposing amendments to the Rules of
Civil Procedure and Evidence are described at http://www.uscourts.gov/rules/proceduresum.htm.
19March 2002 Judicial Conference
Report, at 5, 10, & 11, http://www.uscourts.gov/judconf/marc02proc.pdf.
20October 2001 Judicial
Conference Report, at 39, 43, & 50, http://www.uscourts.gov/judconf/sept01proc.pdf.
21The Judicial Conference
recently reported that "[t]he Advisory Committee ... approved for
publication proposed amendments to Civil Rules 16, 26, 33, 34, 37, and
45 dealing with the discovery of electronically stored information ...
The Advisory Committee will now transmit the proposed new rule and
amendments to the Committee on Rules of Practice and Procedure, with a
recommendation that they be published for public comment in August
2004." See http://www.uscourts.gov/rules/index.html#judicial0304.
22See Sedona Principles,
23David A. Schumann, Tracking
Evidence with GPS Technology, 77 Wis. Law. 8 (May 2004), www.wisbar.org/wislawmag/2004/05/schumann.html.
24See the definition of
"metadata" in the accompanying sidebar, "Definition of Terms."
25See, e.g., Gates Rubber Co.
v. Bando Chem. Indus., 167 F.R.D. 90 (D. Colo. 1996).
26Cf. Richard O. Lempert
& Steven A. Saltzburg, A Modern Approach to Evidence 370
(2d ed. 1983).
27202 F.R.D. 31 (D.C. Cir.
28Id. at 33 (citing
In re Brand name Prescription Drugs Antitrust Lit., Nos. 94 C
897, MDL 997, 1995 WL 360526 at *3 (N.D. Ill. June 15, 1995)).
29217 F.R.D. 309 (S.D.N.Y.
30Id. at 318.
31Id. at 322.
32See, e.g., Medtronic
Sofamor Danek Inc. v. Michelson, 2003 U.S. Dist. LEXIS 8587 (W.D.
Tenn. 2003); Keir v. Unumprovident, 2003 U.S. Dist. LEXIS 14522
33See Sedona Principles,
34Id. at 10.
35Id. at 11-50.
36As long ago as 1996 the ABA/BNA
Lawyers Manual on Professional Conduct stated: "[A]dvances in technology
are relevant to what constitutes [lawyer] negligence and [a] defendant's
failure to use available technology to reduce a known risk could be
considered negligence" (quoted in McChrystal & Gleisner, Laptop
Litigation: The Impact of Technology on Litigation, 72 Wis. Law.
14, 60 n.1 (Sept. 1999)).
37"It was neither a comet nor a
dramatic climactic change that killed off the dinosaurs. They perished
because they could not adapt to the digital age." Redish, Electronic
Discovery and the Litigation Matrix, 51 Duke L. J. 561, 562
38This is the theory of recovery
in Wischer v. Mitsubishi Heavy Indus., 2003 WI App 202, __ Wis.
2d __, 673 N.W.2d 303.
39This is not the same as the
ubiquitous free Adobe Acrobat reader. Version 6 of Adobe
Acrobat® authoring software costs approximately $300 and
can be purchased at most computer software stores.
40See the definition of "PDF" in
the accompanying definitions sidebar.
41See the definition of "TIFF" in
the accompanying definitions sidebar.
42See "metadata" in the
accompanying sidebar, "Definition of Terms."
very powerful but inexpensive software that can be used to index
millions of documents quickly and then conduct word searches of them
using natural language or Boolean search protocols. A single user
license costs about $300. See http://www.dtsearch.com/casestudies.html.
For Summation software, see www.summation.com. For Trial Director
software, see www.indatacorp.com. For
Concordance software, see www.dataflight.com.
44There are several forensic
computer experts. A competent local company that specializes in forensic
computer work is Digital Intelligence, located in Waukesha. See
excellent national forensic computer expert is Peter Garza, a former
Naval intelligence officer. His company is Evidentdata. See www.evidentdata.com.
The Indata Corporation, which makes Trial Director software, also does
forensic computer work. See www.indatacorp.com. While this
author has not used it, another company that does forensic computer work
is Electronic Evidence Discovery. See www.eedinc.com.
45Circuit courts in Wisconsin
have the power to appoint expert witnesses. See Wis. Stat.
§ 907.06 ("The judge may on the judge's own motion or on the motion
of any party enter an order to show cause why expert witnesses should
not be appointed. ...").
46See, e.g., Playboy
Enterprises v. Welles, 60 F. Supp. 2d 1050, 1055 (S.D. Cal.
47See Estate of Neumann v.
Neumann, 2001 WI App 61, 242 Wis. 2d 205, 626 N.W.2d 821 ("Courts
have fashioned a number of remedies for evidence spoliation. The primary
remedies used to combat spoliation are pretrial discovery sanctions, the
spoliation inference, and recognition of independent tort actions for
the intentional and negligent spoliation of evidence. ...
Wisconsin has recognized the first two remedies.") See Sentry Ins.
v. Royal Ins. Co., 196 Wis. 2d 907, 918-19, 539 N.W.2d 911 (Ct.
App. 1995) (upholding trial court's exclusion of evidence related to
refrigerator from which party's expert intentionally removed components,
thereby precluding testing by opposing party); Jagmin v. Simonds
Abrasive Co., 61 Wis. 2d 60, 80-81, 211 N.W.2d 810 (1973) (holding
that spoliation inference (against party causing spoliation) is
inappropriate when evidence was negligently destroyed, but may be
appropriate when destruction is intentional).
48Cf. Yu Jung Park v. City of
Chicago, 297 F.3d 606, 616 (7th Cir. 2002).
49See, e.g., In re Cell
Pathways Securities Litig., 203 F.R.D. 189 (E.D. Penn. 2001);
In re Bridgestone, 129 F. Supp. 2d 1207 (S.D. Ind. 2001).
503M v. Pribyl, 259 F.3d
587, 606 n.5 (7th Cir. 2001) (court allowed negative inference to be
drawn from apparent intentional deletion of information from computer
hard drive); Rodgers v. CWR Constr., 33 S.W.3d 506, 510 (Ark.
2000); Patton v. Newmar Corp., 538 N.W.2d 116, 120 (Minn.
1995); Mudge v. Penguin Air Conditioning, 633 N.Y.S.2d 493
(1995). See also Mathias v. Jacobs, 197 F.R.D. 29 (S.D.N.Y.
51Gates Rubber Co. v. Bando
Chem. Indus., 167 F.R.D. 90 (D. Colo. 1996).
52Definitions are always
important in interrogatories and requests to produce, because if used
properly they can make it possible to craft very specific queries with a
great deal of economy, thus avoiding problems with the requirement in
many jurisdictions that a party can only ask a limited number of
interrogatories without court approval. However, for the reasons stated
in this article, in discovering electronic evidence definitions are of
much greater importance than ever before.
53Cf. Jones v. Goord,
2002 U.S. Dist. LEXIS 8707 (S.D.N.Y. 2002).
54Despite the fact that one
should seek evidence in its native format, you may wish to obtain it in
.pdf or .tiff format for several reasons. For example, if you are using
Summation® it may make sense to obtain .tiff images,
because it will be easier to load into older versions of that program.
However, be aware that the convenience of receiving evidence in .pdf or
.tiff format is probably at the expense of receiving the total picture
provided by receiving evidence in its native format. Evidence provided
in its native format can always be converted to .pdf or .tiff.
Discovery, 52 R.I. B. J. 7 (2003).
56There are some documents that
you know will be associated with metadata. These include email, word
processing documents, and output that is probably from a database (such
as spreadsheet compilations of facts).
57"Deleted" computer records are
often not really deleted. A so-called deleted file is discoverable under
F.R.C.P. 34. Simon Property Group L.P. v. mySimon Inc., 194
F.R.D. 639 (S.D. Ind. 2000).
581989 U.S. Dist. LEXIS 13559
(D.C. Penn. 1989).
59Id. at *6 (citing
Sabel v. Mead Johnson, 110 F.R.D. 553, 555 (D. Mass. 1986)).
Cf. Wis. Stat. § 804.08(3) (option to produce
60DCA Inc., 1989 U.S.
Dist. LEXIS 13559, at *6 (citing In re Master Key, 53 F.R.D.
87, 90 (D. Conn. 1971)).
61A sizeable minority of
companies uses Lotus Notes for email, and in that case you would seek
production of what is called an .nsf file.
62Regarding cost shifting in
cases involving electronic discovery, see Zubulake, Medtronic,
and Keir, supra; Byers v. Illinois State Police, 2000
U.S. Dist. LEXIS 9861, at *35-37 (N.D. Ill. 2002); and Rowe Enter.
v. William Morris Agency, 2002 U.S. Dist. LEXIS 8303, at *23
(S.D.N.Y. 2002), which set forth the criteria to be considered when
shifting costs during electronic discovery. See also the cases
cited supra n.32.
63Harold Sampson Children's
Trust v. The Linda Gale Sampson Trust, 2004 WI 57, ¶4, __ Wis.
2d __, 679 N.W.2d 794.