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    Electronic Evidence in the 21st Century 2

    Some terms used in this article require clarification. Please note, however, that the following are not comprehensive definitions.

    William Gleisner III

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    Wisconsin Lawyer
    Vol. 77, No. 7, July 2004

    Definition of Terms

    Some terms used in this article require clarification. Please note, however, that the following are not comprehensive definitions.

    • Metadata is a term of art that literally means "data about data." In fact, it is hidden data that can be seen only when an electronic document is viewed in its native format. Often, when a document is created by a particular program (such as Word), there is metadata about the document that can be viewed only if the data is opened by that program. For example, email may be stored in directories that can be accessed only by Microsoft Outlook or Outlook Express. When you get the hardcopy of email that comes from Outlook or Outlook Express you are missing a great deal of metadata, which may include header info concerning blind copies of documents, date stamps, routing information, and so on. The file containing the metadata of Outlook is called the .pst file.
    • OCR, or optical character recognition, is a widely used method of converting images into readable and searchable text. Documentary evidence can be imported into a computer system, and "digitized," in two primary ways. The evidence can be scanned in as an image or as an OCR. OCR is often performed using programs such as OmniPage Pro® or TextBridge. ® OCR will work only on documents that have the characteristics of a word processing document. When you OCR a document you convert the image of the document into a text file that can be word searched and manipulated just like any word processing document. Today, many programs can be used to OCR images, although it may be known by a different name. For example, Adobe Acrobat® authoring software refers to OCR as paper capture.
    • PDF, short for portable document format, was developed by Adobe Systems Inc. as a unique format to be viewed through Acrobat viewers. A PDF file (created on one computer) can be viewed with an Acrobat viewer on most other computers and on other platforms. "For instance, you can create a page layout on a Macintosh computer and convert it to a PDF file. After the conversion, this PDF document can be viewed on a UNIX or a Windows machine." Padova, Adobe Acrobat 6 PDF Bible 4-5 (Wiley Publishing 2003). A PDF file is like a photograph taken by Adobe Acrobat publishing software of a document in its native format. If you convert a Word document to PDF you will preserve all the formatting characteristics of the document and it will appear in an Adobe Acrobat viewer just as it did when opened in Word. None of the metadata of the original document will necessarily be visible, however, and you cannot manipulate or change the document to the same extent that you could in Word. In fact, it is possible to add security to a PDF document so you can't change or manipulate it at all. You can OCR, or "capture," PDF documents. The standard version of Adobe Acrobat publishing software (as distinguished from the omnipresent free "reader," which can be downloaded in many places on the Web) costs around $300. However, it is highly sophisticated and versatile software that can perform a variety of useful functions, including the scanning of documents and preservation web pages. Today, it is as useful as word processing software, and every law firm should seriously consider purchasing and learning to use it.
    • TIFF files are similar to PDF files, but they lack the sophistication of PDFs. In the author's experience it is a much less versatile format that requires special software in order to be properly viewed and manipulated. Whereas a great deal can be done to modify and secure PDF files using relatively inexpensive Adobe Acrobat publishing software, to successfully work with TIFF files one often must resort to specialized and fairly expensive software, such as Summation® litigation' software. Adobe Acrobat publishing software can convert TIFF files into PDF files. See Adobe Acrobat Standard 6: Classroom in a Book 107-109 Adobe Systems Inc. 2004).

      For more information about TIFF files

    Sample Motion for Sanctions for Failure to Produce Evidence

    The following is 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.

    A court may impose such sanctions "as are just" under F.R.C.P. 37(d) without any showing of willfulness. As the Notes of the Advisory Committee to F.R.C.P. 37(d) make clear, "[m]any courts have imposed sanctions without referring to willfulness," noting that even a negligent failure may come within the ambit of F.R.C.P. 37(d). In the case of EEOC v. Sears & Roebuck, 114 F.R.D. 615 (D. Ill. 1985), the court found that a party had tendered outdated and incomplete computer printouts to a party in response to a request to produce through negligence. The court in that case stated:

    "This court finds that [the] EEOC negligently tendered to Sears incomplete, outdated and misleading data in response to a clear discovery request. Sears could not have discovered, and did not discover, the problem with the tendered computer printouts until after it had analyzed the printouts ... Under Rule 37(d), a court may impose various sanctions for such a failure to comply with a discovery request, including dismissal of the action, where appropriate." Id. at 627.

    The fact that a written response to requests has been made by a party does not obviate the imposition of sanctions where incorrect, incomplete or misleading data has been supplied to a requesting party. Id. at 626.

    Parties are required to respond to requests to produce in a complete and accurate fashion. See, e.g., Haney v. Woodward & Lothro, Inc., 330 F.2d 940 (4th Cir. 1964); Penthouse Int'l Ltd. v. Playboy Enters. Inc., 86 F.R.D. 396 (S.D.N.Y. 1980); United States v. International Bus. Mach. Corp., F.R.D. 97 (S.D.N.Y. 1977); Milner v. National Sch. of Health Tech., 73 F.R.D. 628, 632 (E.D. Penn. 1977); Hunter v. International Systs. & Controls 'orp., 56 F.R.D. 617 (W.D. Mo. 1972).

    This in turn requires that parties take reasonable steps to ensure that their responses to requests to produce are complete and accurate. See Allen Pen Co. v. Springfield Photo Mount Co., 653 F.2d 17, 23 (1st Cir. 1981); Tavoulareas v. Piro, 93 F.R.D. 11, 20-21 (D. D.C. 1981); Litton Systems Inc. v. American Tel. & Tel. Co., 90 F.R.D. 410 (S.D.N.Y. 1981); In re "Agent Orange" Prod. Liab. Litig., 506 F. Supp. 750, 751 (E.D.N.Y. 1980); Exxon Corp. v. FTC, 466 F. Supp. 1088 (D. D.C. 1978), aff'd, 213 U.S. App. D.C. 356, 663 F.2d 120 (D.C. Cir. 1980); Fisher v. Harris, Upham & Co., 61 F.R.D. 447, 450-51 (S.D.N.Y. 1973).

    Once a failure to comply with the discovery rules is established, sanctions are appropriate; the degree of culpability is only a factor in determining the severity of the sanctions to be applied. See, e.g., Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 207-08 (1958).

    Thus, a failure to make discovery, even if occasioned by simple negligence, may justify the imposition of sanctions. See Compagnie des Bauxites de Guinea v. Insurance Co. of N. Am., 651 F.2d 877, 885 (3d Cir. 1981); Marquis v. Chrysler Corp., 577 F.2d 624, 642 (2d Cir. 1978); David v. Hooker Ltd., 560 F.2d 412, 418-20 (9th Cir. 1977).

    Ultimate production of the material in question does not absolve a party where it has failed to produce the material in a timely fashion. Ohio v. Arthur Andersen & Co., 570 F.2d 1370, 1374 (10th Cir. 1978).