1. Electronic Discovery Merit Systems Protection Board May 22, 2001
Kenneth J. Withers
Federal Judicial Center
Washington, DC

2. Disclaimer The views expressed in this
presentation are those of the speaker
and do not necessarily represent the
views of the Federal Judicial Center
or any other agency of the
United States Courts.

3. 93% of all information generated in 1999 was in DIGITAL form
Paper

4. 93% of all information generated in 1999 was in DIGITAL form

5. Federal Judicial Center
Market forces driving “digitization”
Nearly ALL conventional documents are word-processed
Nearly ALL business activities are now computerized
traffic has surpassed telephone and postal communication
Millions of transactions with legal significance are taking place using computer-based communications

6. Federal Judicial Center
Statutory forces driving “digitization”
GPEA (Pub. L. No ss , 1998, codified as 44 USCA s n, West Supp. 1999) requires all government agencies to convert all processes “if practicable” to electronic form by October 21, 2003
Requires all government agencies to:
Provide e-filing option for submissions to agency
Accept multiple forms of electronic signatures
Maintain records in electronic form
See the DOJ guidance paper at

7. Federal Judicial Center
Statutory forces driving “digitization”
E-SIGN (15 USC ss ) gives legal recognition to electronic signatures
Signatures, contracts and other records in electronic form are valid and enforceable
Electronic signatures/records “shall not be denied legal effect” solely because in electronic form
Limits agency’s power to dictate media choices

8. Federal Judicial Center
Two broad problems for MSBP administrative judges
Electronic evidence
Evidence offered in electronic form
Electronic discovery sought
Electronic process
MSPB conversion to electronic forms and processes
Creation of valid electronic “record” for appeal

9. Federal Judicial Center
What are “electronic documents”?
Information created, stored, and/or utilized using computer technology
Active data v. inactive data
Files created by business applications
Files created by Internet applications, especially
Files on peripheral or mobile devices
Computer-based record storage (tapes, disks, CR-ROMs, etc.)

10. Federal Judicial Center
What are the differences between paper and electronic documents?
Much information is not available in paper form
“Metadata”
System data
Many files are virtually indestructible
Delete does not mean delete
“Promiscuity”
Low cost for copying and transport
Searchability

11. Federal Judicial Center
What are the problems?
Sheer volume
Infinite number of possible locations
Volatility of computer data
Lack of organization
Legacy data
Need for experts

12. Federal Judicial Center
What are the issues for judges?
Data preservation
Defining the scope of discovery
Legal scope
Scope in computer context
“Heroic” data retrieval
Granting or limiting access to computers and files
Data protection (future evidence issues)
Protecting privacy and privilege
Spoliation
Costs and cost allocation

13. Federal Judicial Center
Data preservation
Linnen v. A.H. Robins, 10 Mass. L. Rep. 189 (Mass. Super. Ct. 1999)
GTFM v. Wal-Mart Stores, 2000 WL (S.D.N.Y.)

14. Federal Judicial Center
Defining the scope of discovery
Rule 26 scope of discovery
Party-supervised discovery of information relevant to the “claims and defenses of the parties”
Judicially supervised discovery of information relevant to the “subject matter of the dispute”
Reminder: Rule 26(b)(2)(i), (ii), (iii) “proportionality” governs all discovery
Alternative views of “scope”
Texas Rules of Civil Procedure 196.4
ABA Civil Discovery Standards

15. Federal Judicial Center
Defining the scope of discovery: Scope in the context of electronic discovery
Active data
System data
Backup tapes
Deleted files
Legacy data

16. Federal Judicial Center
“Heroic” data retrieval
Fennell v. First Step Designs, 83 F. 3d 526 (1st Cir. 1996)
Playboy v. Terri Welles, 60 F. Supp. 2d 1050 )S.D. Cal. 1999)

17. Federal Judicial Center
Granting or limiting access to computers and files
Playboy v. Terri Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999)

18. Federal Judicial Center
Data protection (authentication and chain-of custody)
Gates Rubber v. Bando Chemical Industries, 167 F.R.D. 90 (D. Colo. 1996)

19. Federal Judicial Center
Protecting privacy and privilege
Northwest Airlines v. Local 2000 Teamsters, 00-CV-8 (D. Minn. 2000)

20. Federal Judicial Center
Spoliation
GTFM v. Wal-Mart Stores, 2000 WL (S.D.N.Y.)
Danis v. USN Communications, 2000 WL (N.D. Ill.)

21. Federal Judicial Center
Costs and cost allocation
In re Brand Name Prescription Drugs Antitrust Litigation, 1995 WL (N.D. Ill.)
In re Air Crash Disaster at Detroit Metropolitan Airport, 130 F.R.D. 634 (E.D. Mich. 1989)
Simon Properties v. MySimon, 194 F.R.D. 639 (S.D. Ind. 2000)
Danis v. USN Communications, 2000 WL (N.D. Ill.)

22. Federal Judicial Center
Hypothetical MSPB cyber-case
Highly computerized government agency
First and only female civil engineer in “cowboy” environment
Dismissed for poor performance
Alleges pretext and retaliation
Offensive
Offensive digital graphics
Complaints and responses in digital form
“Doctored” digital job evaluations

23. Federal Judicial Center
Hypothetical MSPB cyber-case
Agency presents “clean” record
Complainant asks for electronic discovery
Immediate data preservation
Production of complete electronic files
Access to desktop computers and servers
Recovery of deleted files
Access to backup tapes

24. Federal Judicial Center
What are the discovery issues?
Data preservation
Form of production
Access to desktop computer and servers
Privacy and privilege
“Heroic” recovery of deleted files, backup tapes
Costs and cost allocation

25. Federal Judicial Center
Emerging trial procedure issues: How is this evidence presented?
Form of presentation
Admissibility
Stipulation
Authentication
Role of experts
Preservation for the appellate record
Security
Format

26. Federal Judicial Center
Emerging appellate procedure issues: What does the record look like on appeal?
Briefs
References
Testimonial record
Exhibits
As originally entered
As used at trial

27. Federal Judicial Center
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