Discovery in Civil Matters

Discovery of Electronic Documents and Other Digital Data
By Judge Stephen P. Friot
Originally published May 10, 2003

A. INTRODUCTION

Ignorance, fear of the unknown, and the complacency which comes with success in paper-based litigation can be a potent combination. Ignorance, fear and complacency can cause a lawyer to conduct "document" discovery the way it was done before computers appeared on nearly every desktop, with the result that highly probative information may not be discovered. The purpose of this article is to discuss some of the technical and legal issues relevant to discovery of electronic documents and other digital data. Most of the rules and cases that are cited in this paper are federal rules and federal cases. Because of the substantial similarity between the federal and Oklahoma discovery rules, the federal cases will likely provide useful guidance in resolving electronic discovery problems in Oklahoma courts. 1

The Scope of the Problem. Billions of e-mails are generated every day.2 It has been estimated that at least thirty percent of all corporate records are kept only in electronic form.3 It should also be borne in mind that electronic evidence is not simply those ones and zeros which reside in conventional computers and servers. Digital information is generated and stored in many places not commonly thought of as computer storage devices. For instance, most global positioning system (GPS) equipment - such as that now commonly found in luxury automobiles - keeps a record (subject to memory limitations) of where the unit has been and of the routes of travel over which the unit has moved.

Computer evidence is not just the end-user data which is seen and used every day by most workers. As is discussed below, it also takes the form of metadata (data about data) such as file header information, records of document revisions, hidden comments, document creation dates, access records, deleted data, conversation threads (forwards and replies) and Web activity logs.4 Thus, the lawyer who fails to pursue effective discovery of electronic documents and other digital data risks leaving unexamined a large quantity of relevant information which could have a real impact on the course of litigation. See, e.g., Siemens Solar Industries v. Atlantic Richfield Co., 1994 WL 86368 at *2 (S.D.N.Y. 1994), where the court noted that the plaintiff's assertion that the defendant had misrepresented its commitment to a business venture was based mostly on "discovery of internal electronic mail messages . . . that revealed beyond peradventure" that the venture was not viable. More recently, a major pharmaceutical company was confronted (although the jury's verdict was in favor of the company) with inconvenient employee e-mails which suggested an intent to suppress negative information about the effects of one of its drugs.5 Candid comments that would never be found in paper records are often found in e-mails. Within the last two years, Merrill Lynch,6 Arthur Andersen7 and Enron,8 to name but the most prominent, have been impaled on e-mails containing comments that might never have been made even in the most casual paper memoranda. This medium of communication invites casual, unguarded comments which can be very difficult to explain away when viewed on a ten-foot high screen in the courtroom.

B. PRESERVATION OF ELECTRONIC DATA

The first step in discovering (or facilitating the discovery of) relevant electronic data is to understand the problem and, with the benefit of that understanding, assure that the relevant information is preserved. As the Committee on Court Administration and Case Management of the Judicial Conference of the United States has observed: "In many of the reported cases on electronic discovery, failure of the attorneys to understand their clients' computer systems, routines, capabilities, and limitations were at the heart of the problem."9

Two basic propositions provide a starting point: First, absent an affirmative statutory or regulatory command, a person or business is not obligated to preserve records which there is no reason to believe are relevant to pending or anticipated litigation. Consequently, counsel would be well advised to affirmatively seek preservation of electronic data in the hands of an adversary or potential adversary.10 Secondly, if the relevance of electronic data is known, those who control it are obligated not to destroy it. Once litigation is filed or becomes highly likely to occur, even a negligent failure to preserve e-mails can result in sanctions. 11

Although this article is not intended to survey the statutory provisions which might mandate record retention, it is worth noting that the corporate and accounting reform legislation which was enacted in 2002 includes some far-reaching record retention provisions. The Sarbanes-Oxley legislation12 requires the Securities and Exchange Commission to adopt rules for retention of broad categories of audit-related records, including electronic records. 18 U.S.C. § 1520. Other broad provisions criminalize the destruction of records "in relation to or contemplation of" any matter within the jurisdiction of any department or agency of the United States, 18 U.S.C. § 1519 (emphasis added), or for the purpose of impairing the availability of a record for use in an official proceeding - whether or not the proceeding is pending at the time the record is destroyed. 18 U.S.C. § 1512.

Some electronic data can last forever, some can be lost by being gradually overwritten, and some can be intentionally destroyed on the storage device. Thus, unlike periodic purges of hard copy files, relevant and discoverable electronic information can be lost literally with every tick of the clock. Courts have recognized that preservation of electronic evidence may require urgent attention.13 For that reason, in any case in which electronically stored data may be discoverable, the preservation of the data must be addressed at the very outset of the litigation, or even before suit is filed. The threshold concerns confronting counsel have been summarized concisely by Kenneth Withers, a research associate at the Federal Judicial Center:

Although the filing of an action may, in a general sense, put a party on notice of the potential relevance of corporate records of various kinds, inaction resulting from nothing more venal than simple bureaucratic inertia can result in the irretrievable loss of discoverable electronically stored data. For that reason, counsel should consider placing adverse parties on notice, at the earliest possible stage, that the necessary steps should be taken to preserve the electronic evidence which will soon be the subject of formal discovery. In some instances, it would be advisable to send a "preservation letter" specifically requesting the creation of archival backup tapes and admonishing the recipient to take affirmative steps as necessary to preserve electronic records from being deleted or overwritten. The recipient of the preservation letter should be advised that all relevant computer records, including records that have been "deleted," are documents which may be discoverable under the applicable rules.15 Computer records which have been "deleted," but not overwritten, can, in many instances, be retrieved with the use of special software and retrieval techniques - a legitimate form of electronic dumpster diving. Since a "deleted" document is subject to constant degradation by being gradually overwritten, the preservation letter should emphasize the need to "freeze" all possibly relevant electronic data without delay. Once a preservation letter is delivered, "any document retention and destruction policy in effect should be suspended and the company is on notice that any destruction of documents from that time on could turn into a spoliation of evidence case."16 It has been suggested that well-prepared counsel, to avoid charges of spoilation, should advise their clients to take the following specific actions when litigation is clearly in the offing:

• Change any switches within the e-mail system that automatically delete or alter data.
• Stop the automatic recycling of backup tapes.
• Stop the automatic recycling of personal computers.
• Clone (an exact image, not a backup) the hard drives of potentially relevant computers.

3. Instruct employees not to delete potentially relevant data (counsel should define specific topics, issues, or date ranges).17

Some courts have specifically addressed the responsibility of counsel to take action to protect computer data. The Eastern and Western Districts of Arkansas, always on the cutting edge, have required by local rule that the Rule 26(f) report specifically address "[w]hether any party will likely be requested to disclose or produce information from electronic or computer-based media" and, if so, "whether reasonable measures have been taken to preserve potentially discoverable data from alteration or destruction in the ordinary course of business or otherwise."18 The District of Wyoming has adopted a local rule providing that counsel "shall [in their Rule 26(f) conference] attempt to agree on steps the parties will take to segregate and preserve computer-based information in order to avoid accusations of spoilation."19 In addition, in an appropriate case, the court may, as a preliminary matter, enter an order for the preservation of computer records. See, e.g., Illinois Tool Works, Inc. v. Metro Mark Products Ltd., 43 F.Supp.2d 951 (N.D. Ill. 1999) (ordering the preservation of the integrity of computers and imposing sanctions for destruction of electronic records) and Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn. 2002). Another case involving preservation of computer records by order of the district court is Smith v. Texaco, Inc., 951 F.Supp. 109 (E.D. Tex. 1997), where the court weighed the plaintiff's need to inspect relevant electronic documents against the cost of storage and the need for access to the documents in the ordinary course of business.20

Recent developments have complicated the matter. Perhaps learning from Bill Gates' well-publicized personal experiences in U.S. v. Microsoft, Microsoft has announced the development of "rights management services" for its server software, including a feature (called "time-based expiration rules" by Microsoft) which will enable system managers to designate an age after which computer records will automatically be deleted,21 a feature which is present in many current versions of e-mail software.

C. PRELIMINARY DISCOVERY

Initial Disclosures. The initial disclosures required by Rule 26(a)(1)(B), Fed.R.Civ.P. must include "a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment." The Advisory Committee notes to the 1993 version of this rule make it clear (consistently with Rule 34(a), see Part E, below) that the disclosure of "documents" and "data compilations" includes "computerized data and other electronically-recorded information." The 2000 amendment to this rule does not change this, so the Advisory Committee guidance is still authoritative.22 Comprehensive discussion of the possible consequences of failure to disclose is beyond the scope of this article, but it is worth noting here that even a seemingly benign failure to disclose the existence of a document in electronic form can have consequences, as was the case in In Re Bristol-Myers Squibb Securities Litigation, 205 F.R.D. 437, 442 (D. N.J. 2002), where, as a result of the defendant's failure to disclose the existence of an F.D.A. New Drug Application in electronic form, the court declined to require the plaintiffs to pay thousands of dollars for a paper copy of the huge document. By signing the initial disclosure, the attorney is certifying, pursuant to Rule 26(g), that the disclosure is complete and correct to the best of the signer's knowledge, information and belief and that the signer has made a "reasonable inquiry." Rule 26(g), Fed.R.Civ.P. Obviously, an attorney who signs an initial disclosure without inquiring about records which may exist only in digital form does so at his or her own risk.

The First Wave. In the typical discovery sequence, documents are discovered before depositions are taken. There are many good reasons for this sequence, not the least of which is that the value of a round of depositions costing thousands of dollars may be lost or substantially impaired by late discovery of a highly relevant document. However, in a case in which preservation and discovery of electronic records may be important, it may be appropriate to start with a Rule 30(b)(6) deposition, taken as early as the rules will allow, to capture the information necessary to support effective discovery of electronic records. _A form deposition notice which was designed for this kind of a deposition can be found on the Internet at 1) http://my.okbar.org/ or 2) www.oba-net.org, File Library, Litigation & Appeals. In framing discovery pleadings for discovery of computerized documents, good definitions will help to avoid needless difficulties and resultant delay. A document containing definitions which may be useful can be found on the Internet at 1) http://my.okbar.org/ or 2) www.oba-net.org, File Library, Litigation & Appeals.

The protocol for preservation of electronic records may be established by agreement or by order of the district court. In either case, information of the kind which would be abtained in an early Rule 30(b)(6) deposition may be crucial to the effort to ferret out and protect electronic records from destruction.

No discussion of discovery of electronic evidence would be complete without consideration of the boomerang effect:

Then you receive an almost identical set of discovery requests with the parties' names reversed.23

There is, of course, no assurance that you will avoid being on the receiving end of aggressive discovery by refraining from serving it up, but the possibility of reaping as you sow aptly illustrates the need to use good judgment in deciding how intrusive you should be.

D. HIRE AN EXPERT?

The history of electronic data processing in American business goes back more than 40 years. However, the cottage industry of computerized discovery consulting has grown up only in the last few years. The primary reason for the relatively recent development of this area of consulting is that it has been only relatively recently that massive amounts of relevant information have commonly been stored only in electronic form. Ten years ago, relatively few communications were sent via e-mail and stored only in electronic form, but now (as Bill Gates found out to his sorrow24), some of the most telling documents, containing casual admissions that are rarely found in formal paper records, may exist only in electronic storage. That reality, combined with the technical challenges which are inherent in discovery of electronic records, will inevitably raise the question of whether the services of an expert in discovery of electronic records should be retained. Systems expertise is available from Oklahoma-based sources and from national firms. Depending on the needs of the case (and the litigation budget), it will be necessary to determine whether to enlist local expertise or the services of a national electronic discovery support firm.

One final note on the subject of experts: Don't forget your brothers and sisters in the bar. Some Oklahoma lawyers have in-depth knowledge of computers, applications software and network architecture. The combination of legal knowledge and computer expertise in one mind may help to master the challenges of electronic records discovery more efficiently (and cost-effectively) than any other approach.

E. PRODUCTION OF DATA IN DIGITAL FORM

The discoverability of electronically recorded data has been well established, as a textual matter, for years. See Rule 34(a), Fed.R.Civ.P. and 12 O.S. (2001) §3234(A)(1). See also, Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 652 (D. Minn. 2002) and Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D. Cal. 1999) ("The court finds that by requesting 'documents' under Fed.R.Civ.P. 34, plaintiff also effectively requested production of information stored in electronic form."). For that reason, and because of the ubiquity of electronically stored documents, it has been recognized that, "in this age of high technology where much of our information is transmitted by computer and computer disks, it is not unreasonable for the defendant to produce the information on computer disk for the plaintiff." Storch v. Ipco Safety Products Co. of Pennsylvania, 1997 U.S. Dist. LEXIS 10118 (E.D. Pa. 1997). See also, Santiago v. Miles, 121 F.R.D. 636, at 640 (W.D.N.Y. 1988), where the court noted that "a request for raw information in computer banks is proper and the information is obtainable under the discovery rules."

1. E-mail. If production of hard copies of e-mails is all that is requested, then that is all that will be produced: copies of e-mails which have previously been printed out or which are still retrievable. However, individual hard drives, central servers and backup tapes will likely contain e-mails which have been intentionally deleted or routinely purged from other parts of the system. See, generally, Basile, et al., Online Law (Addison-Wesley, 1996), at 420. As stated by Basile, et al.:

Another reason to consider seeking production of electronic versions of e-mail is that, although a printout of an e-mail contains only a few fields of information (date, time sent, sender, recipient name, subject and message content), the electronic version, under the prevailing standard for internet e-mail, may contain other very helpful data fields, such as a blind copy list, routing information and original, unaltered versions of e-mails.

2. Data Recovery. Production of electronic data will involve varying levels of intrusiveness, depending on the needs of the situation. A relatively passive approach, which may well be sufficient, will result in production of "data files" in magnetic format. The more aggressive approach is to seek an "image backup" of the hard drive on which the information is stored - a process which, because of its intrusiveness, will likely require the services of an intermediary agreed upon by the parties or, in a proper case, selected by the court.

When ordinary data files are produced, the material received will consist of discreet packages of data which exist in a format readily retrievable by normal means. In contrast, an image backup will provide "every piece of information on the hard drive, whether the information was allocated as a file or not." Gates Rubber Co. v. Bando Chemical Industries, Ltd., 167 F.R.D. 90, at 112 (D. Colo. 1996). The advantage of an image copy is that:

Feldman, "10 Steps to Breakthrough E-Discovery" (Pike & Fischer, Inc., December, 2000).

It has been judicially recognized that, in appropriate cases, recovery of data at this basic level can be important. For instance, in Simon Property Group L.P. v. MySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000), the court established a highly structured protocol for recovery of data from hard drives:

"The expert shall then use his or her expertise to recover from the 'mirror image' of the hard drive of each computer, and to provide in a reasonably convenient form to defendant's counsel, all available word processing documents, electronic mail, messages, PowerPoint or similar presentations, spreadsheets, and similar files. The court intends that files making up operating systems and higher level programs in the computer not be duplicated, and that the copying be limited to the types of files reasonably likely to contain material potentially relevant to this case. [Citation omitted.] To the extent possible, the expert shall also provide to defendant's counsel: (a) the available information showing when any recovered 'deleted' file was deleted, and (b) the available information about the deletion and contents of any deleted file that cannot be recovered." Simon Property Group, supra, at 641.

For a slightly different approach to review of computer storage devices by an outside expert, see Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn. 2002). The moral of the story: In a proper case, it may be appropriate to seek production of an actual "mirror image" copy of a hard drive which is reasonably believed to contain relevant records.

3. Conversion. Issues as to data format and conversion should be resolved at an early stage. It is obviously necessary to avoid production of digital data in a medium (for instance, a two-inch tape) or a format which may effectively render the data meaningless. See, e.g., Daewoo Electronics Co. Ltd. v. United States, 650 F.Supp. 1003 (Ct. Int. Trade. 1986), where the court required the defendant to convert data from "SAS data sets" to "sequential data files." Id. at 1006-07. See also, Greyhound Computer Corp., Inc. v. IBM, 3 Comp. L. Serv. Rep. 138, at 139 (D. Minn. 1971). The lesson here is that it is necessary, early on, to establish a clear understanding as to the format of the data to be produced and the medium by which it will be produced.

F. ACCESS TO STORAGE DEVICES

The production of a true "mirror image" copy of the contents of a storage device, as discussed above, should ordinarily be acceptable as a faithful replication of the contents of the device. However, in some cases, the court has required that the actual storage device (typically a hard drive) be made available to an expert acting as an officer of the court. See Simon Property Group L.P. v. MySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000) and Playboy Enterprises, Inc. v. Welles, 60 F. Supp.2d 1050 (S.D. Cal. 1999). Discovery of this kind is highly intrusive and technically complex. Improper browsing on a hard drive or network server can result in the compromise of confidential information on a scale that would far exceed the mischief which might result from unauthorized rummaging through a filing cabinet filled with paper records. For these reasons, the courts have not hesitated to enlist outside expertise in dealing with electronic discovery issues:

In Playboy Enterprises, the defendant claimed that she had consistently and routinely deleted incoming and outgoing e-mails soon after they were read or sent. She continued to do this even after the lawsuit was filed against her, and even with respect to e-mails which were potentially of evidentiary significance. 60 F. Supp.2d at 1052-53. Faced with conflicting contentions as to the recoverability of "deleted" e-mails (and apparently influenced by defendant's unrepentant statements about her continuing practice of deleting e-mails), the court found as follows:

On this basis, rather than simply requiring the defendant to produce a mirror image copy of her hard drive, the court interposed a third party:

The court softened the impact and intrusiveness of this procedure by directing counsel for the defendant to sort the records thus recovered for relevance to the litigation (rather than permitting plaintiff's counsel to do the sorting). Id. The Playboy Enterprises approach was readily adopted by the court in Simon Property Group L.P. v. MySimon, Inc., supra. See also, Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn. 2002) (plaintiff permitted to select an expert to produce a "mirror image" of defendant's computer files to serve as archival copy for discovery purposes); and Isenberg v. Oklahoma Medical Research Foundation, Case No. CIV-01-1451-F, U.S.D.C. W.D. Okla., October 4, 2002, where the court appointed a special master to search defendant's computers to ensure that defendant had complied with its discovery obligations.

G. COST SHIFTING

Discovery of electronic documents and other data can be expensive. The fees of a consultant hired simply to advise as to the technical issues involved in discovery of electronic records will not likely be shifted to the opposing party (absent sanctionable conduct by the opposition which might provide a basis for cost shifting). The question of cost shifting becomes a bit more complex when the issue is shifting the cost incurred by one litigant in complying with the electronic discovery demands of the opposing litigant. The court has considerable discretion and may be influenced somewhat by its perception as to which party caused the problem. For instance, in In re Brand Name Prescription Drugs Antitrust Litigation, 1995 WL 360526 (N.D. Ill. 1995), the defendant estimated that it would cost $50,000 to $70,000 to compile, format, search and retrieve responsive e-mail. Id. at *1. After noting that the "Manual for Complex Litigation, Second," states that the party receiving computerized data is typically "required to bear any special expense incident to this form of production," id. at *3, the court nevertheless required the defendant to bear the expense of producing its own data because, as the court found, the costliness of the discovery procedure is a product of the defendant's record-keeping scheme, over which the plaintiff had no control. Id. at *2-3. In contrast, in the Playboy Enterprises case, even though the court was clearly troubled with the defendant's conduct, the plaintiff was required to pay the costs associated with data recovery. 60 F. Supp.2d at 1054. A slightly different approach focuses on the question of whether the expense of producing the electronic data is "undue" rather than focusing on the blameworthiness of the litigants. See, e.g., Bills v. Kennecott Corp., 108 F.R.D. 459, at 462 (D. Utah 1985). Yet another approach was used in McPeek v. Ashcroft, 202 F.R.D. 31 (D. D.C.), where the defendant's backup tapes had to be "restored" (rendered readable) before the presence of discoverable records could be determined. The court noted, as a beginning point, the proposition that "[d]uring discovery, the producing party has an obligation to search available electronic systems for the information demanded." Id. at 32. Noting also the court's responsibility under Rule 26(c) to prevent "undue burden or expense," the court directed the defendant, at its expense, to restore e-mails from the relevant time period, associated with one individual's computer, and to search the e-mails thus restored for relevant items. Id. at 34. The court concluded that, with the benefit of an accounting of the time and money spent and the results of the search, "I will permit the parties an opportunity to argue why the results and the expense do or do not justify any further search." Id. at 35. Other thoughtful discussions of the competing considerations relating to shifting the cost of discovery of computerized information may be found in Rowe Entertainment, Inc. v. William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002) and In Re Bristol-Myers Squibb Securities Litigation, 205 F.R.D. 437, 442 (D. N.J. 2002).

H. CONSEQUENCES OF DESTRUCTION OR FAILURE TO PRODUCE

The consequences of destroying electronically stored data can be serious, regardless of whether the destruction is routine (i.e., the result of failure to preserve it from being overwritten or otherwise automatically destroyed) or intentional (i.e., spoliation).

In National Association of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987), relevant computer records were destroyed by low level employees (ignorant of their relevance) even though high level employees within the Veterans Administration "knew or should have known that these destroyed materials were relevant and discoverable." Id. at 557. By way of remedy, the court stated that it would "draw the strongest allowable" factual inferences against the defendant. Id. at 557. In addition, the court imposed monetary sanctions and appointed a special master, at the expense of the defendant, to supervise discovery. Id. at 558-60.

In ABC Home Health Services, Inc. v. IBM, 158 F.R.D. 180 (S.D. Ga. 1994), IBM destroyed relevant, discoverable computer files, but the court stopped short of finding that the destruction constituted "deliberate undermining of a discovery request." Id. at 183. The court declined to strike IBM's counterclaims, apparently on the basis of its finding that IBM's conduct was not willful and deliberate. However, the court did find, as alesser sanction, that the plaintiff "may be entitled to a jury instruction explaining that the destroyed documents are presumed to be damaging to the party responsible for the destruction." Id. at 183. This, of course, is consistent with the settled rule in most jurisdictions. Likewise, in Linnen v. A.H. Robins Co., Inc., 1999 WL 462015 (Mass. Super. 1999), the court had no trouble concluding that an adverse inference instruction would be appropriate as a result of the defendant's failure to preserve backup tapes after service of a document request. Id. at 11. 26

The key point, in terms of preservation of electronic evidence, is that, even in relatively innocent circumstances, destruction can have serious consequences. For instance, in Illinois Tool Works v. Metro Mark Products, Ltd., 43 F. Supp.2d 951 (N.D. Ill. 1999), the intentional destruction of computerized data was fairly obvious. It appears from the opinion that most of the information sought was ultimately obtained, and the court had no trouble requiring the misbehaving defendant to pay both attorney's fees and the fees and costs of plaintiff's computer expert incurred in pursuing the matter.

It goes without saying that data recovery efforts must themselves be carefully designed to avoid destruction of data. In Gates Rubber Co. v. Bando Chemical Industries, Ltd., 167 F.R.D. 90 (D. Colo. 1996), the plaintiff's expert was given access to a hard drive for the purpose of recovering "deleted" files. To accomplish this, the expert loaded data recovery software onto the hard drive, thereby destroying seven to eight percent of the data on the hard drive. The court found that:"To use Norton's Unerase, it was unnecessary for [plaintiff's expert] to copy it onto the hard drive of the Denver computer. By doing so, however, the program obliterated, at random, seven to eight percent of the information which would otherwise have been available. No one can ever know what items were overwritten by the Unerase program." 167 F.R.D. at 112.

The court imposed sanctions against the defendant, although the ultimate effect of the sanctions is unclear because the court imposed sanctions against both parties for various forms of misconduct. See 167 F.R.D. at 112-129.

I. PROFESSIONAL RESPONSIBILITY

If a litigant maintains that computerized information which has been requested is not available, it would be advisable for its counsel to investigate to determine with reasonable certainty whether all possibilities have been explored. A good example of this may be found in GTFM, Inc. v. Wal-Mart Stores, Inc., 2000 WL 335558 (S.D.N.Y. 2000). In GTFM, Wal-Mart was requested to produce certain computerized transactional documents. In response, Wal-Mart's counsel represented in writing that "Wal-Mart does not have the centralized computer capability to track [the relevant transactions]." Id. at *2. Much later, in a deposition, it became quite clear that the information did exist when it was requested, but had subsequently been deleted from the computer. The court had this to say about the quality of the inquiries which were made by Wal-Mart's counsel:

"Because of defendant's misrepresentation about its computer capacity, plaintiffs have expended extensive time and money attempting to retrieve the information in other ways. Whether or not defendant's counsel intentionally misled plaintiffs, counsel's inquiries about defendant's computer capacity were certainly deficient. It was plaintiff's counsel who developed the information that defendant's computer could [retrieve the requested information] by deposing Ms. Basnaw. As a vice president in Wal-Mart's MIS department, she was an obvious person with whom defendant's counsel should have reviewed the computer capabilities in December 1998." Id. at *2 (emphasis added).

The court consequently imposed sanctions against Wal-Mart in excess of $100,000 (see subsequent opinion at 2000 WL 1693615 (S.D.N.Y. 2000)) and specifically ordered Wal-Mart to give an expert designated by plaintiff's counsel access to all computer records and facilities within Wal-Mart's possession, custody or control "for the purpose of allowing plaintiff's expert to conduct an onsite inspection of defendant's computer facilities to ascertain whether and how it is possible to extract [the relevant transactional data]." Id. at *1.

Counsel should not be content with the client's blithe denial that the information is available. Because of the unique problems resulting from continuous degradation of digital data, it behooves counsel to learn about the client's computer systems and to counsel the client about the potential consequences of failing to act quickly to preserve potentially relevant data.

J. RESOURCES

The realm of reference material to aid discovery of electronically stored data is constantly expanding, as is the availability of for-hire expertise. An Internet search will reveal numerous sources of support for discovery of computerized information.

For those who would prefer to do some reading before spending the client's money, some relatively new publications may be of interest. See, for instance, Digital Discovery & E-Evidence, published by Pike & Fischer, Inc., a subsidiary of BNA. Legal Tech Newsletter27 and Law Technology News, published by American Lawyer Media, Inc. The Web site of Applied Discovery, Inc. provides a very useful Web page for researching electronic discovery issues.28 The International Journal of Digital Evidence29 is a forum for discussion of theory, research, policy and practice in the field of digital evidence. Valuable guidance for attorneys and their clients is also available online from the American Records Management Association30 and from the Association for Information and Image Management. 31

K. CONCLUSION

The complexities of discovery of electronic records reflect nothing more than the complexities of how business is done. There are traps for the unwary. The need for effective discovery must be balanced against the need to avoid pointless expense. Above all, the challenges of discovery of records that do not exist on paper call for the application of good judgment, professionalism, and common sense by counsel, litigants, and the courts.

1. See, Winston v. Stewart & Elder, P.C., 55 P.3d 1063, at 1071 n. 27 (Okla. 2002).
2. International Data Group,. Inc., as cited in www.internetnews.com/IAR/ article.php/1471801.
3. Digital Discovery and e-Evidence, http://www.pf.com/law__internet_digitaldisc.asp (Pike and Fischer (2001).
4. Barsocchini,"Electronic Data Discovery Primer," Law Technology News (American Lawyer Media, Inc.), Aug. 2002, at 21 (hereinafter: Barsocchini).
5. Brezosky, "Bayer Sued on Handling of Cholesterol Drug," Daily Oklahoman, March 8, 2003, at 1-B.
6. McGeehan, Merrill "Chief is Apologetic Over Analysts; One Dismissed," N.Y. Times, Apr. 27, 2002, at C1.
7. Cramton, "Enron and the Corporate Lawyer," 58 Business Lawyer 143 (Nov. 2002); Rhode and Paton, "Symposium Enron: Lessons and Implications," 8 Stan. J.L.Bus. & Fin. 9 (Autumn, 2002).
8. Lerach, "Plundering America: How American Investors Got Taken," 8 Stan. J.L.Bus. & Fin. 69 (Autumn, 2002).
9. "Civil Litigation Management Manual," at 35 (JCUS 2001).
10. Applied Telematics, Inc. v. Sprint Communications Co., 1996 U.S. Dist. LEXIS 14053, at *6 (E.D. Pa. 1996).
11. Procter & Gamble Co. v. Haugen, 179 F.R.D. 622, 632 (D. Utah 1998), aff'd in part, rev'd in part on other grounds, 222 F.3d 1262 (10th Cir. 2000).
12. Otherwise known as the Public Company Accounting Reform and Investor Protection Act, Pub. L. 107-204, 116 Stat. 745.
13. Antioch Co. v. Scrapbook Borders, Inc, 210 F.R.D. 645 (D. Minn. 2002).
14 . Kenneth J. Withers, "Computer-Based Discovery in Federal Civil Litigation," 2000 Fed. Cts. L. Rev. 2, at 2 (Oct. 2000) (http://www.fclr.org/2000fedctslrev2.htm). The Federal Courts Law Review is an electronic law review dedicated to legal scholarship relating to federal courts. For general information about this very useful publication, see http://www.fclr.org/content/fclr.htm.
15. See, generally, Crown Life Insurance Co. v. Craig, 995 F.2d 1376 (7th Cir. 1993).
16. Barsocchini, n. 4, supra, at 20 - 21.
17. Lipinsky, et al., "Start with a Checklist," Law Technology News (American Lawyer Media, Inc.), Aug. 2002, at 22.
18. LCvR26.1, U.S.D.C. E.D.Ark.
19. LCvR26.1(d)(3)(b)(i), U.S.D.C. D.Wyo.
20. The Committee on Court Administration and Case Management of the Judicial Conference of the United States has provided guidance to District Judges which emphasizes the importance of preservation of relevant data. "Civil Litigation Management Manual," at 36 (JCUS 2001).
21. http://microsoft.com/presspass/press/2003/feb03/
02-21_RMSForWindowsServerPR.asp. See also, "New Technology Could _Cut Down on Whistleblowing," USA Today.com (http://www.usa_today.com/tech/news/ computersecurity/ 2003-02-21-whistle_blower_x.htm).
22. See, e.g. In Re Bristol-Myers Squibb Securities Litigation, 205 F.R.D. 437, 440 - 41 (D. N.J. 2002).
23. Brown, et al., "Ten Ways to Contain the Costs of Electronic Discovery, " Digital Discovery & e-Evidence, December 2002, at 4.
24. "Do we have a clear plan on what we want Apple to do to undermine Sun?" Gates e-mail to Microsoft executives P. Maritz, et al., Government Trial Exhibit 265, U.S. v. Microsoft, Case No. 98-1232 (D.D.C.).
25. Withers, n. 11, supra, at 13.
26. See also, Residential Funding Corporation v. DeGeorge Financial Corp., 306 F.3d 99 (2nd. Cir. 2002) (adverse inference instruction as result of failure to produce e-mails in time for trial). The Tenth Circuit standard for an adverse inference instruction may be more stringent. See, e.g., Gilbert v. Cosco, Incorporated, 989 F.2d 399, 406 (10th Cir. 1993) (listing factors to be considered).
27 . Law Journal Newsletters, a div. of American Lawyer Media, Inc., New York.
28. http://www/applieddiscovery.com/lawLibrary/caseSummaries.asp
29. http://www.ijde.org
30. http://arma.org
31. http://aiim.org

Examples of the two forms mentioned in this article can be found on the Internet by logging on to 1) http://my.okbar.org/ or 2) www.oba-net.org, File Library, Litigation & Appeals. If you need assistance to access either of these resources, contact the OBA Management Assistance Program Dept. at (405) 416-7008 or (800) 522-8065.

ABOUT THE AUTHOR
Stephen P. Friot is a United States District Judge in Oklahoma City. He practiced law in Oklahoma City for 29 years before his appointment to the bench by President George W. Bush.