OVERCOMING YOUR FEARS: UTILIZING TECHNOLOGY IN LITIGATION

III. UNDERSTANDING ADVANCED FACT AND DOCUMENT MANAGEMENT

A. Types of Document and Fact Databases

Binders, binders and more binders is the way I was first taught to organize documents from case inception to trial.  We had binders of documents organized by chronology, subject matter, "hot" documents, witness, party, and the like.  Whole rooms were dedicated to the storing of these binders, and a paralegal was charged with manually indexing and tracking the hundreds of binders sometimes created in one case.  A box or boxes of binders would welcome me at the hotel or office where a deposition was to take place (sent days ahead to make certain that the documents arrived safely).  Technology has eliminated many of these burdens but also has created new issues.

A search of the world wide web returns numerous references to products  to assist with the management of facts and documents in today's litigation.  While these products proclaim various "bells and whistles," most products provide the following general functions:

• Finding, reviewing and managing documents
• Annotations, on-line redaction, customizable document folders, automated Bates numbering and document branding
• Searching testimony, linked exhibits and relevant documents
• Production options that include exporting documents to CD or other media

These applications provide help not only with organizing and managing documents but also in maximizing the advantages associated with the migration of business away from file cabinets to electronic media storage.  U.S. News & World Report presented the following statistics in February 2000:

• 93% of corporate documents are created electronically
• 70% of those NEVER migrate to paper
• By 2005 corporations are expected to generate 17.5 trillion electronic documents annually
• In 2000, office workers exchanged an estimated 2.8 billion e-mails per day.

With the intervening technological advances, the decrease in the cost of storage media, and the general acceptance of technology, these numbers certainly have grown.

But to effectively manage electronic data, you must first ask for and demand that the opposing party produce the documents in the original electronic media.    To do so may require the retention of a computer forensic expert, who can help to (1) retrieve information from backup tapes or legacy ("old and out of use") systems, from standard systems to arcane or uncommon file types, and to (2) narrow the set of potentially responsive documents to avoid wasting resources or being inundated with useless information.

The importance of asking for the original electronic media is readily apparent.  The electronic copy of a document contains useful information not available in the paper copy.  For example, electronic files contain "Metadata," hidden data about a document such as date created, original author, date last modified, and so forth.  For example, e-mail files include more than 90 fields of Meta Data, including when and by whom the e-mail was received, opened, and forwarded and the e-mail addresses of those on the "bcc" list.  In an Excel or QuatroPro worksheet, the Meta Data includes the formulae used in the background to generate the numbers viewable on the screen - a great advantage in preparing for expert and other depositions.

Although the costs associated with the use of these programs may make it impractical for use in smaller cases, some type of fact and document database is essential for cases with large amounts of documents, especially where electronic files are being produced.  Recognizing the need, the market has responded with a number of different programs.  These programs, however, can be broken out into two basic types: (1)  those requiring software on the user's workstation and dedicated hardware, and (2) those that have web-based repositories.  Summation (www.summation.com) [i] and Applied Discovery, Inc. (www.applieddiscovery.com) are examples of each.  Attached at the end of this section of materials are screenshots for these two programs.

Which application you ultimately choose will depend on a variety of factors, including:

• Resources (both monetary and technical) - Do you have on-site staff and available electronic storage space?
• The number of users and their locations - Do you have multiple offices involved, does your client want direct access?
• The volume and form of the documents - How many documents do you have in paper form only, does the volume make it unmanageable to have hard copies only?
• The complexity of the matter - Will you need to create numerous customized files, how many people will be reviewing documents?
• The location of depositions and the trial - Will you have access to the internet?

Regardless of which application you ultimately choose, some general best practices exist for getting the most out of your data management system.  While no two cases are identical, optimal use of a data management system depends on good data collection protocols and a sound and thoughtful data management plan.

B. Tips and Tricks on Database Design

The usefulness of the data management system will depend heavily on the quality of the data obtained.  In other words, Junk in-Junk out.  At the beginning, the practitioner must have a working knowledge of the information system of the target of the search.  This knowledge includes the file types and storage media.

Common storage media include:

• DVD
• CD-ROM
• Hard drives (IDE, SCSI, USB, Firewire)
• Laptop Computers
• Desktop Computers
• Zip drives
• Jaz drives
• Floppy diskettes
• Backup Tapes (DAT, DLT, AIT)
• PDAs and Cell Phones

Common file types include:

• e-mail programs - such as Microsoft Outlook, Microsoft Outlook Express, Microsoft Mail, Lotus Notes, Lotus cc:Mail, Eudora, Novell Groupwise, UNIX mail, and AOL
• Spreadsheet Programs - such as Microsoft Excel, Lotus 1-2-3, QuatroPro
• Database Programs - such as Microsoft Access, Paradox
• Word Processing Programs - such as Microsoft Word, Corel WordPerfect, Lotus WordPro
• Presentation Programs - such as Microsoft PowerPoint and Lotus Freelance
• Project Management Programs - such as Microsoft Project
• Computer Aided Design Programs - such as Microsoft Visio
• Programming Languages - such as C++, Java
• Multiple Image File Formats - such as text files, image files (TIFF, JPG, JPEG, GIF, EPS, PCX, BMP, WMF), HTML or compressed file formats

One of the more important issues in designing the database concerns the imaging of paper-only documents.  Regardless of the size of the case or the computer sophistication of the target, certain documents inevitably will be available only in paper.  Why is this important?  The functionality of the document management software is greatly affected by whether the document was obtained electronically or is an image of the hard-copy.  For example, the full text search capability of many of these applications is dependent on the document being provided electronically or imaged using Optical Character Recognition ("OCR").

OCR builds on image by converting the hard-copy into electronic text files that can be viewed, edited, redacted, annotated, and most importantly searched.  In other words, OCR uses logic that reads the imaged documents and reaches conclusions as to what word should match the image.  However, as may be obvious, this creates integrity and accuracy problems.  Variations in font, typographical errors, slang, oblique references, synonyms, precise yet inappropriate terms, and the like result in the creation of text files that do not match the original document.

Although present vendors advertise accuracy rates approaching 99%, for the litigator, 99% is not good enough.  No one wants to take the chance that the 1% might include the document proving their case.   To make this point, with 99% accuracy, you can expect 30 typographical errors on an average page or, if randomly displaced, about 10% of the words on an average page are incorrect.  As you can see, using the expensive service of having paper documents imaged with OCR is not a magical cure to a manual review of the documents.  However, OCR can be a valuable tool with the following types of documents:

• paper pleadings from opponents, especially interrogatory answers
• routine litigation correspondence
• technical or other "vocabulary controlled" documents
• paper contracts and similar forms (without handwritten notations)
• any document you know will be important or used repeatedly in the course of the litigation.

OCR can be contrasted with the much less expensive imaging format known as TIFF.  Unlike a document imaged in OCR, a TIFF image is simply an opaque picture of a document and, therefore, cannot be electronically searched.  For TIFF imaged documents, the user will have to create an index that catalogues various information about the document.  This index will be the one searched to find relevant documents for depositions, motions, and trial.  Even with documents imaged with OCR or provided electronically, indices are important.

C. Getting the Most Out of Your Database

A structured plan must be in place prior to reviewing documents and creating these indices.  The beginning of this process is similar to that used in the old binder system.  You should first determine whether you want to organize the documents based on certain key dates, topics, sources and then decide what fields of information to track in the indices.  Obvious fields include source, author, recipients, date, attachments, basic subject matter, privilege, responsiveness, witness and type of document (e.g., e-mail or memorandum).

Planning is especially critical in determining when documents should be placed in customized files and what terms should be used to describe parties, technical  terms, products, and the like.  Slang, oblique references, synonyms and precise yet inappropriate terms can greatly diminish the efficacy of being able to find a document later.  Take the company Procter & Gamble as an example.  Without a common definition, a coder might refer to it as Procter & Gamble, P&G, Procter or some other reference personnel to the person coding the index.  Thus, when you want to find all documents relating to Procter & Gamble, which search term will be used?  How will you be certain that you have retrieved all relevant documents?

 While not a perfect solution, you must institute a set of project "rules" and definitions prior to review of the documents.  These rules assist in ensuring that multiple reviewers or coders address issues and codes similarly.  The rules should include definitions of key terms, the relevant date period, how to treat parent/child document relationships, and the like.  These rules should be documented and shared with everyone working on the matter.  As new rules are created or terms defined, the documentation should be updated and distributed.  If the review requires multiple coders, then it helps to have a single person accountable for managing the project and require periodic meetings of the coders to improve quality control.

Instructing the coders to read the whole document rather than focusing solely on headings or other information that stands out is also important.  This method allows all names and issues in the document to be coded or categorized, which assists in the use of documents later and prevents documents from being reviewed twice, once for the default codes, such as author and date, and a second time for specific issues pertinent to the case.

Hiring professional coders or document reviewers may also be appropriate for some cases.  These individuals typically can fill-in the default code faster and more efficiently than attorneys or others who rarely perform the task and also frees attorneys and paralegals to conduct other tasks related to the case.

In sum, using these document management systems is expensive.  As a result, careful planning is critical to ensuring the costs will be justified.

IV. TACKLING COMPUTERIZED LEGAL RESEARCH

A. Subscription Services

Subscription services, such as LexisNexis (www.lexis.com) and Westlaw (www.westlaw.com), provide convenient access to many legal sources of information.  These services gather information into searchable databases to permit a user to search court opinions, statutes, secondary sources and public records from many, if not all, jurisdictions in one search.  Furthermore, the services attempt to add value to the research by providing "sound bytes" [ii] of the law contained in each case to assist a user in sorting through the results of a search.  The services also annotate statutes to provide easy access to opinions applying or interpreting the statute.

The advantages of research via a subscription service can be numerous.  First, while also a disadvantage, the sheer volume of data or opinions available permit a user to search several jurisdictions or publications simultaneously.  This volume of data may also hinder research by requiring a user to sort through thousands of off-point, unrelated cases that happen to include the general search term.  To address this situation, both LexisNexis and Westlaw include functions that permit large results to be "focused" down to a more exact list by adding additional search terms or other limitations.

 Second, the search options involved allow a user to search for terms within so many words of each other and use Boolean symbols.  This results in a user being able to run very specific searches for a particular item.

The subscription services also provide access to many secondary sources, including collections of law review and journal articles, treatises and other publications.  Both LexisNexis and West also group all materials, including court opinions, statutes and secondary sources, related to a single topic, such as constitutional law or cyberlaw.  These groupings assist in providing more precise results in initial searches to help focus a user to a specific answer.

Subscription services, however, have not made research in books obsolete.  Books, such as Moore's Federal Practice or Wright & Miller, Federal Practice and Procedure, provide both concise and thorough information on a subject to allow a user to determine the language typically used by courts for a topic.  This language will then permit the user to draft the queries to search the subscription research services.  In general, conducting initial research in a hard copy book to determine the basic information associated with an area of the law is likely to be more cost-effective for a client than conducting numerous searches of the secondary sources within subscription services.

Finally, the advantages offered by the ability to search public records within subscription services cannot be overstated.  The services, including Accurint and KnowX as well as LexisNexis and Westlaw, continually gather and update public records from most, if not all, jurisdictions.  This assembly permits a user to go to one location for information rather than, for example, going to each county in a state to determine an individual's real estate holdings.  In addition, the services link information together from several sources to both weed out inaccurate information and provide a comprehensive look at the subject being searched.

Typically, a user must contract with the service to gain access to the databases.  These contracts may calculate the fee based on the type and number of searches run in each billing period or the amount of time a user is connected to the service.  Be mindful that the costs associated with these services may be large, and may outweigh the benefits of these services.

B. Unpublished Decisions

The importance of access to the unpublished decisions provided by subscription services grows as courts increasingly permit citation of unpublished decisions.  Currently, the federal circuit courts are split on the issue of citations to unpublished decisions with the Second, Seventh, Ninth and Federal Circuits prohibiting the practice. [iii] The rules in the remaining Circuits permitting citations to these opinions also vary greatly in the weight applied to the opinions and what opinions may be cited.  For example, Sixth Circuit R. 28(g) permits citation to an unpublished decision as precedent for a material issue if "no published opinion . . . would serve as well" and a copy of the decision is served on all parties and the court, while the First Circuit allows citation to its own unpublished opinions "[w]hen the earlier opinion is relevant to establish a fact about the case" and in other limited circumstances.  First Cir. R. 32.3.

The need for consistent treatment of unpublished decisions is currently being debated.  In April 2004, after receiving 513 public comments and 15 statements at the public hearing, the Advisory Committee on Appellate Rules ("Advisory Committee") submitted to the Committee on Rules of Practice and Procedure ("Standing Committee") Proposed Federal Rule of Appellate Procedure 32.1 ("Rule 32.1") that would permit parties to cite unpublished opinions in all federal circuits but would not require the circuit to apply precedential value to the opinion. [iv] The Standing Committee, however, returned proposed Rule 32.1 to the Advisory Committee in June 2004 for further study instead of submitting it to the Judicial Conference for approval. [v]

The proponents and opponents of proposed Rule 32.1 are steadfast in their positions.  The key arguments against the citation of unpublished opinions may be found in the letters from the judges of various circuits opposing the proposed Rule.  First, the creation of unpublished opinions stemmed from the growing caseloads experienced by the appellate courts and the need to issue opinions quickly and efficiently. [vi]   Opponents argue that the proposed Rule will result in a reallotment of judicial resources to focus additional attention on the language of the decision. [vii]   This additional attention also will result in less time devoted to published opinions and the delay in decisions of routine cases. [viii]   Judges from the Seventh Circuit opposing proposed Rule 32.1 argued that instead of spending more time on the unpublished opinions, courts would simply affirm or state the decision in a single sentence or paragraph without attempting to explain the decision to the parties. [ix]

Opponents also believe that it is logically inconsistent to allow citation to the opinions while at the same time permitting circuits to enact local rules that would determine whether any precedential value is applied to the decision.  As Judge Haldane Robert Mayer of the Federal Circuit stated, "if a circuit maintains a rule barring the court from treating a nonprecedential opinion as binding, there seems little point in allowing a litigant to cite such nonprecedential opinions." [x]

Third, opponents believe that proposed Rule 32.1 will not benefit parties as they "may feel compelled to significantly expand the breadth and depth of their legal research . . . .  [T]his expanded time, effort, and cost will yield commensurately little in return." [xi]   Even supporters of the rule question whether the rule would result in inequalities among litigants due to the inability of some parties to access unpublished opinions:  "It would indeed be an uneven playing field to permit governmental defendants and respondents to cite unpublished orders to the court while a whole class of litigants does not have access to the material." [xii]   Although Judge Kenneth F. Ripple of the Seventh Circuit was specifically referring to pro se appeals by prisoners, the point equally applies to other individuals or parties who may not have the financial resources to permit an attorney to conduct extensive research and review of unpublished decisions in the course of the case.

Proponents, on the other hand, argue that unpublished decisions provide guidance both to attorneys arguing a case and the judges deciding it.  As Judge Ripple states, "if we are going to rely on this material as an internal reference source (and it would indeed be artificial to suggest that a judge ought to forget what he or she did in January when confronted with the same situation in February), I see no reason why the parties ought not be able to cite and comment on the material." [xiii]

In addition, simply because an opinion may be cited does not mean that it will be precedential.  One commentator suggests that the Third Circuit Court of Appeals proves the point because it permits the citation of unpublished decisions without "[feeling] constrained to treat those rulings as precedent." [xiv]   In other words, supporters argue that informing a court what it said previously and a court being forced to rely on a decision because it represents precedent are two different matters.

C. Casemaker

Similar to subscription services but offered free of charge to members of the Ohio State Bar Association, Casemaker offers access to court opinions for twenty-one (21) states [xv] and the United States Supreme Court.  Statutes and administrative codes are also generally accessible for the states found in the service.  The coverage of the databases dramatically varies by state, [xvi] the search capabilities are generally more limited than those found in paid subscription services, and each state's database must be searched independently.  However, Casemaker offers an economical option for legal research.

D.  Government Internet Resources

1. Federal

The federal government offers many resources on the internet that assist with legal and factual research.  First, the general public has electronic access to federal case information through PACER.  This service permits an individual to obtain information such as:

• A listing of all parties and participants for each case,  including judges, attorneys, and trustees;
• A compilation of case related information such as cause of action, the nature of the suit, and the dollar demand;
• A chronology of dates of case events entered in the case record;
• A listing of new cases each day;
• Appellate court opinions;
• Judgments or case status; and
• Imaged copies of documents.

This type of information permits parties to review the experience of a judge or opposing attorney with specific types of cases and track cases with similar claims to determine their outcome.

In addition, the various federal agencies and departments have created websites that provide useful research information.  For example, the Federal Trade Commission site (www.ftc.gov) provides access to limited case documents, including complaints and final judgments.  These sites also typically provide access to the regulations issued by the agency and other information related to their fields of responsibility.  The following list represents a small sample of the websites available:

• Department of Justice, http://www.usdoj.gov/
• Environmental Protection Agency, http://www.epa.gov/
• Equal Employment Opportunity Commission, http://www.eeoc.gov/
• Federal Communications Commission, http://www.fcc.gov/
• Internal Revenue Service, http://www.irs.gov/
• Department of Labor, http://www.dol.gov/
• Securities and Exchange Commission, http://www.sec.gov/
• U.S. Social Security Administration, http://www.ssa.gov/

The government has also developed a search engine to search federal, state, and territorial web sites.  FirstGov (http://firstgov.gov/) permits a user to search federal sites only, state sites only or both.  Its advance search option permits word variations to be searched, allows hits from websites to be excluded, and requires the term to appear in a specific portion of the website.  The site also provides links to government sites, including sites maintained by the government on specific topics such as the economy or federal legal research.

2. States

States have also developed web sites that permit easy access to information on the internet.  For example, the State of Ohio's website (http://ohio.gov) provides links to the offices of the various Ohio elected officials, including the Secretary of State site (http://www.sos.state.oh.us/sos/busiserv/index.html) that permits searches for the availability of names for corporations and other information on corporations submitted in annual reports or other filings.  In addition, the Ohio Supreme Court website (http://www.sconet.state.oh.us/) provides free access to Supreme Court decisions since 1992, as well as appellate court decisions since at least 2001. [xvii]   Other Ohio websites that provide information useful for legal research include:

• Ohio Professional License Database, https://www.license.ohio.gov/lookup/default.asp
• Ohio Secretary of State, http://www.sos.state.oh.us/sos/
• Ohio General Assembly, http://www.legislature.state.oh.us/

3. Local

Local governments, including counties and cities, are also developing websites that permit access to public records over the internet.  These sites provide not only information regarding services provided to residents but also may permit access to public records filed with the entity.  For example, in Montgomery County (www.co.montgomery.oh.us) and Hamilton County (http://www.hamilton-co.org/), court, real estate tax and recorder records are all available to be searched online.

The information provided on local websites varies greatly.  For example, while Montgomery and Hamilton Counties provide access to these public records through the internet, other counties, such as Miami (www.co.miami.oh.us) and Clinton (http://www.co.clinton.oh.us/), provide contact information and a description of services offered by various departments with little or no direct access to the records online.  State and Local Government on the Net (http://www.statelocalgov.net/state-oh.htm) provides a listing of not only all Ohio county websites, but also links to city, township and village websites as well.  The Ohio Public Library Information Network ("OPLIN") (http://www.oplin.org/page.php?Id=63-16) also provides links for county and other local sites organized by county.

E. Sources for Public Records and "Publicly Available" Information

The number of sources available on the internet for public records or "publicly available" information is dramatic.  These sites provide access to addresses, phone numbers, professional licenses and real estate information and the like.  As discussed previously, state and local government sites also may provide access to public information, including county clerk, auditor and recorder records.  The following sources, some free and some fee based, provide access to some type of public information:

• Internet white pages, including anywho.com, infousa.com, whowhere.lycos.com, phonenumber.com
• Public License Searches, including Ohio (https://license.ohio.gov/lookup/default.asp), New York (http://www.op.nysed.gov/opsearches.htm), Florida (http://www.state.fl.us/dbpr/), Kentucky (http://kentucky.gov/Portal/OnlineServices.aspx#onsvc_licenses-prof), Indiana (http://www.state.in.us/ai/licensing/)
• http://legaldockets.com/
• Local Newspapers, including The Dayton Daily News (www.daytondailynews.com), The Cincinnati Enquirer (www.enquirer.com), The Columbus Dispatch (http://www.dispatch.com/), The Indianapolis Star (http://www.indystar.com/)
• Accurint (http://www.accurint.com/)
• KnowX (http://www.knowx.com/)
• GovernmentRecords.com
• NASDBrokerCheck.com
• SmartLinx from LexisNexis
• Courtlink (https://courtlink.lexisnexis.com/).

F. Search Engines and Other Internet Resources

The internet contains vast amounts of information, and search engines to assist a user in searching for sites that contain specific information.  The more popular general search engines include Google, Yahoo and Lycos.  These engines "crawl" the web to collect documents to build an internal index or database of internet sites. [xviii]   When a user submits a request to a search engine, the engine combs its internal index to find sites that contain the search words used.  While the search engines cannot index every site on the internet, Google, for example, currently contains 8,058,044,651 web pages in its internal index. [xix]   Other search engines focus on particular subjects or topics, such as lawcrawler at Findlaw.com that searches legal web sites and databases.

In addition to search engines, major publications have created online versions of their products.  Many of these sites require a subscription to obtain access to in-depth, if not all, information, but they represent an efficient way to search past issues or publications.  For example, Hoovers.com provides information on publicly traded companies, while martindale.com provides the information on lawyers found in the Martindale-Hubbell publication.  Other examples include Time Magazine at time.com, The Wall Street Journal at wsj.com and the New York Times at nytimes.com.

Public library websites also represent a source of online information.  The library's website typically provides access to computerized research databases and indices with valid borrower information.  For example, the Dayton Metro Library (http://daytonmetrolibrary.org) offers access to EBSCO host and Electric Library, which index and provide full text articles from popular magazines and scholarly journals, and News Bank, which provides full-text regional and local news articles.  The Cleveland Public Library (http://www.cpl.org/ ) and The Public Library of Cincinnati and Hamilton County (http://www.cincinnatilibrary.org/ ) offer an even greater selection of indexes for business and other information. Finally, OPLIN (http://www.oplin.org/access2.php?Id=67-22642&msg=Oplin), which can be accessed with any Ohio library card information, [xx] also provides access to a large number of research database resources.

VI. UTILIZING ELECTRONIC DISCOVERY

A. Discoverability of Electronic Evidence

  Courts consistently rule that electronic evidence is discoverable to the same extent as regular hard-copy discovery:

• Rowe Entm't, Inc. v. The William Morris Agency, No. 98 Civ. 8272, 2002 WL 975713, 2002 U.S. Dist. LEXIS 8308 (S.D.N.Y. May 9, 2002).  The court stated that "Rules 26(b) and 34 for the Federal Rules of Civil Procedure instruct that computer-stored information is discoverable under the same rules that pertain to tangible, written materials."
• White v. White, 781 A.2d 85 (N.J. Super. Ct. Ch. Div. 2001).  The court refused to suppress an email from a family hard drive during divorce proceedings because "rummaging through files in a computer hard drive [is] not any different than rummaging through files in an unlocked file cabinet."
• Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999).  The court allowed discovery of the defendant's hard drive because it likely contained relevant information.
• Linnen v. A.H. Robins Co., No. 97-2307, 1999 WL 462015, 1999 Mass. Super. LEXIS 240 (Mass. Super. June 16, 1999).  The court stated that "[a] discovery request aimed at the production of records retained in some electronic form is no different in principle, from a request for documents contained in any office file cabinet."
• Bills v. Kennecott Corp., 108 F.R.D. 459, 463-64 (D. Utah 1985).  The court stated that "information stored in computers should be as freely discoverable as information not stored in computers, so parties requesting discovery should not be prejudiced thereby."

Therefore, all emails, calendar entries or electronic documents may be discoverable if "relevant to the claim or defense of any party."  Fed. R. Civ. P. 26(b)(1).  "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."  Id.

Courts, however, will limit a requesting party's access to storage media, other hardware or large volumes of electronic discovery if the issues in the case do not warrant such intrusive measures or the request fails to provide for protecting the producing party's privileged information:

• Bethea v. Comcast, 218 F.R.D. 328 (D.D.C. 2003).  The plaintiff sought to inspect the defendant's computer system to determine if additional documents existed but the defendant argued that it had previously produced all relevant unprivileged documents and that plaintiff failed to articulate any suspicion that it had withheld additional documents.  The court agreed with the defendant and stated that more than mere suspicion is required for inspection of computer systems.
• In re Ford Motor Company, 345 F.3d 1315 (11th Cir. 2003).  The appeals court overturned the district court order permitting the plaintiff unfettered access to Ford's databases detailing, among other things, all customer contacts with Ford because the order permitted the plaintiff access to information without permitting Ford to object prior to its disclosure.
• Dikeman v. Stearns, 560 S.E.2d 115 (Ga. Ct. App. 2002).  The court refused to order access to the plaintiff's computer system because the request was overbroad, oppressive and annoying.

B. A Party's Duty to Preserve Evidence

1. Notice of the Duty to Preserve and Relevance of the Evidence

All parties "are obligated to take appropriate measures to preserve documents and information . . . reasonably calculated to lead to the discovery of admissible evidence and likely to be requested during discovery." [xxi]   The duty attaches when the party has knowledge or notice of the relevance of evidence to the dispute.  A party may receive notice of the duty to preserve or the evidence's relevance through:

• Prior Litigation
• Pre-litigation Communications or Other Information
• Filing of a Complaint
• Discovery Requests
• Federal Rules of Civil Procedure
• Court Orders
• Statutes

The most effective way to provide early notice to a party of its duty to preserve evidence is to send a letter to opposing counsel or the party, if prior to filing a complaint, requesting him or it to preserve all information, including electronic evidence, related to the matter.  This letter should contain, at a minimum, the following information:

• A description of the subject matter of the dispute.
• A very broad description of potentially relevant documents mirroring the description provided to your own client.
• A generic listing of locations where electronic data may be stored, including, but not limited to, hard drives, archival or backup tapes, laptop computers, home computers, voice-mail systems, handheld computers, networks, cell phones, proprietary online services, third-party storage repositories, intranets.
• A request that the opposing party's document retention policy be reviewed and suspended or modified to prevent routine destruction of electronic and printed materials.
• A request that the opposing party's management information systems and information technology personnel be notified of the need to preserve data.

Finally, counsel should include the need to preserve all electronic evidence in the Conference Report required by Fed. R. Civ. P. 16 or Ohio R. Civ. P. 16.  By including it in the Rule 16 Conference Report, all parties, including the court, clearly have been notified of the duty and its potential breadth.

2. Scope of Evidence that Must Be Preserved

Although a party has a duty to preserve all documents or other evidence that may lead to relevant information, courts acknowledge that not every email or other electronic evidence can realistically be preserved once a party has notice of the duty to preserve.  For example, in Concord Boat Corp. v. Brunswick Corp., No. LR-C0-95-781, 1997 33352759, 1997 U.S. Dist. LEXIS 24068, at *16-17 (E.D. Ark. Aug. 29, 1997), the court determined that the duty to preserve arose only with the filing of the complaint and not during previous antitrust litigation because "to hold that a corporation is under a duty to preserve all e-mail potentially relevant to any future litigation would be tantamount to holding that the corporation must preserve all e-mail."

Furthermore, the court in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003), a decision in a leading case relating to electronic discovery, noted that "[a]s a general rule, . . . a party need not preserve all backup tapes even when it reasonably anticipates litigation."  The court went on to note however, that any "unique, relevant evidence that might be useful to an adversary" must be preserved.  Id. at 218.  The Zubulake court also clarified that the duty extends only to the employees likely to have relevant information and that the duty generally does not extend to inaccessible backup tapes.  Id.  The court added, however, if a party can determine which backup tapes contain specific employees' electronic data, then those tapes must be preserved.  Id.

The Zubulake court also provided a preferred data preservation procedure once the duty to preserve attaches:

• Preserve backup tapes for key employees or others with relevant information
• Retain both current and archived backup tapes identified as potentially relevant
• Catalog documents created after the duty attaches in a separate file for easy collection and review
• Take mirror images of computer hard drives.

Id.

3. Retention Policies

Courts commonly find that the duty to preserve relevant information overrides any company retention policies covering the document or data: 

• Bradley v. Sunbeam Corp., No. 5: 99 CV144, 2003 WL 21982038, 2003 U.S. Dist. LEXIS 14451, at *38-40 (N.D. W.Va. Aug 4, 2003).  The court ruled that the duty to preserve exceeds a company's duty "to do nothing more than follow its own internal policy."
• Trigon Ins. Co. v. United States, 204 F.R.D. 277, 289 (E.D. Va. 2001).  The court stated "document retention policies . . . do not trump the Federal Rules of Civil Procedure or requests by opposing counsel . . . .  [E]xecution of a document retention policy that is at odds with the rules governing the conduct of litigation does not protect [the party] from a finding of intentional destruction."
• Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. 1988).  The court stated that "if the corporation knew or should have known that the documents would become material at some point in the future[,] then such documents should have been preserved.  Thus, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy."

4. Practical Advice Regarding Preservation of Data

Once a party becomes aware that litigation may be forthcoming, it should take action to preserve all documents, whether electronic or hard copy, related to the potential litigation.  The following steps assist in effectively fulfilling a party's duty to preserve electronic data:

• Suspend routine document destruction or alteration required under document retention policy.
• Involve counsel in determining both issues relevant to the cause and that may lead to relevant discovery.
• Send a priority memorandum, with periodic reminders thereafter, to the appropriate employees, including those in information technology,  instructing them to preserve all documentation relevant to the litigation.  The order should include the issues involved in the litigation and remind the employees that the data retention policy no longer applies to these issues.
• Obtain copies of all hard copy documents.
• Develop working knowledge of the technology systems to determine storage media, locations and length of storage.  This knowledge should also include whether the system overwrites deleted information.  Depending upon the complexity of the system, this step may also require consulting a computer forensics expert to determine an effective strategy for preserving and maintaining electronic data.
• Designate an employee to be responsible for the collection and protection of relevant documents and information.

C. Sanctions for Spoliation

As the reliance on electronic storage of documents and methods of communication grows, communications or drafts that individuals or companies typically did not preserve or save in the past are now preserved in emails and documents saved on computer hard drives, networks or other media.  This large increase in potentially discoverable information, along with the numerous locations where electronic data may be stored, results in not only more potential evidence to maintain and review but also greater risk that some evidence may be lost, altered through the general course of business, destroyed as part of an adopted retention policy or destroyed intentionally.  These greater risks equate to a higher risk of sanctions for discovery violations, including spoliation.

1. Requirements for an Adverse Inference

Spoliation is "[t]he intentional destruction, mutilation, alteration, or concealment of evidence." [xxii]   As the definition suggests, courts typically require the deletion, alteration or concealment of evidence to be intentional or done in bad faith in order to merit the imposition of sanctions:

• Beck v. Haik, 377 F.3d 624 (6th Cir. 2004).  The court defined spoliation to be the intentional destruction of evidence.
• Mathias v. Jacobs, 197 F.R.D. 29, 37 (S.D.N.Y. 2000) vacated on other grounds, 167 F. Supp. 2d 606 (S.D.N.Y. 2001).  The court held that the destruction of evidence must be "willfull" to impose an adverse inference.
• Banco Latino, S.A.C.A. v. Gustavo A. Gomez Lopez, 53 F. Supp. 2d 1273, 1277 (S.D. Fla. 1999).   The court expressly refused to extend spoliation sanctions to destruction resulting from negligent or reckless acts.  The court reasoned that "mere negligence in . . . destroying the records is not enough for an adverse inference, as it does not sustain an inference of consciousness of a weak case."
• Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997).  The court held that "[t]he adverse inference must be predicated on the bad faith of the party destroying the records."
• Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. 1988) (citation omitted).  The court stated that "a presumption or inference arises . . . only when the spoliation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent."
• Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975).  The court determined that if the party simply destroys documents or records negligently, then the rationale for sanctioning spoliation does not hold. 

In contrast, other courts have granted an adverse inference even if the evidence was not destroyed in bad faith:

• Rambus, Inc. v. Infineon Techs. AG, No. 3:00cv524, 2004 WL 383590, 2004 U.S. Dist. LEXIS 2988 (E.D. Va. Feb. 26, 2004), amended by, 220 F.R.D. 264.  The plaintiff's employees shredded approximately two million documents as part of its document retention policy put in place after receiving notice of impending litigation.  The court concluded that even if the plaintiff "did not institute its document retention policy in bad faith, if it reasonably anticipated litigation when it did so, it is guilty of spoliation" and that "even valid purging programs need to be put on hold when litigation is 'reasonably foreseeable.'"
• Martino v. Wal-Mart Stores, Inc., 835 S. 2d 1251 (Fla. Dist. Ct. App. 2003).  The court stated that an adverse inference regarding the destruction of documents arises when a party has possession of self-damaging evidence and either loses or destroys the evidence.
• Wuest v. McKennan Hosp., 619 N.W. 2d 682, 687 (S.D. 2000) (citation omitted).  The court stated that if a document "is unavailable because of negligence, or for some reason evidencing a lack of good faith, the jury should be given an adverse inference instruction."
• Am. States Ins. Co. v. Tokai-Seiki (H.K.), Ltd., 704 N.E. 2d 1280 (Miami County 1997).  The court stated that "negligent or inadvertent destruction of evidence is sufficient to trigger sanctions where the opposing party is disadvantaged by the loss."

The Zubulake court (discussed earlier) established a three part test to determine when an adverse inference for spoliation is appropriate:

• the party with control over the evidence had a duty to preserve it at the time of destruction;
• the records were destroyed with a "culpable state of mind"; and
• the destroyed evidence was "relevant" to the party's claim or defense and a reasonable trier of fact might find that it would support that claim or defense.

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2002).  Whether negligent or reckless actions would fulfill the "culpable state of mind" element depends upon the jurisdiction.  Zubulake argues, however, that intentional destruction per se establishes the relevance required in the third element.  Id.

2. Other Sanctions For Spoliation

Although the adverse inference instruction is the most common sanction for failing to preserve evidence, courts may award financial sanctions or even dismiss the case:

• United States v. Phillip Morris USA Inc. f/k/a Phillip Morris Inc., 327 F. Supp. 2d 21 (D.D.C. July 21, 2004).  The defendant continued to delete emails under its retention policy for two years after a court order to preserve all evidence and for several months even after learning that its retention policy was inadequate in light of the litigation.  The court precluded the defendants from calling a key employee at trial who failed to preserve documents and ordered the defendants to pay costs, as well as $2,750,000 in sanctions.
• QZO, Inc. v. Moyer, 594 S.E.2d 541 (S.C. Ct. App. 2004).  The court granted default judgment against the defendant, after he delayed in providing his computer to the plaintiff and reformatted the hard drive erasing relevant information.
• RKI, Inc. v. Grimes, 177 F. Supp. 2d 859 (N.D. Ill. 2001).  The court found that the defendant defragmented his home computer to prevent plaintiff from discovering the deletion of confidential information and software.  The court ordered the defendant to pay $100,000 in compensatory damages, $150,000 in punitive damages, attorneys' fees and court costs.
• Long Island Diagnostic Imaging v. Stony Brook Diagnostic Assocs., 286 A.D.2d 320 (N.Y. App. Div. 2001).  The court dismissed the defendants' counterclaims and third party complaint due to their spoliation of evidence.

3. Independent Causes of Action for Spoliation

In addition to potential spoliation sanctions in the pending matter, some jurisdictions, including Ohio, also recognize an independent cause of action for the destruction of documents.  In these states, a party may bring a separate case claiming damage resulting from the destruction in the previous action.  To prove the tort of intentional spoliation in Ohio, a party must prove five elements: 

"1. [P]ending or probable litigation involving the plaintiff,

2. knowledge on the part of defendant that litigation exists or is probable,

3. willful destruction of evidence by defendant designed to disrupt the plaintiff's case,

4. disruption of the plaintiff's case, and

5. damages proximately caused by the defendant's acts."

Smith v. Howard Johnson Co., 615 N.E.2d 1037, 1038 (Ohio 1993).

Although not recognized in Ohio, [xxiii] some jurisdictions, including California and the District of Columbia, recognize an independent action for the tort of negligent spoliation.  Typically the following elements must be shown:

• "the existence of a potential civil action;
• a legal or contractual duty to preserve evidence relevant to the action;
• negligent destruction of evidence;
• significant impairment of the ability to prove the underlying lawsuit;
• a causal relationship between the destruction of evidence and the inability to prove the underlying lawsuit; and
• damages." [xxiv]

D. Collecting Data for Discovery

A chain of custody for electronic evidence must be maintained and documented when collecting the data.  Much like evidence in a criminal case, a proponent of the evidence must show that the electronic document or recording presented in court is the same document or recording that existed prior to the commencement of the litigation.  In other words, the proponent must show that no alteration or manipulation of the data has occurred.  The following information should be documented each time data is collected or shared:

• "Date, time, and place of collection or receipt.
• The name of the individual who collected or received the evidence.
• A description of what was obtained, including media-specific information.
• Media type, standard, and manufacturer.
• All movement of evidence (evidence transfer) and the purpose of the transfer.
• Physical (visual) inspection of evidence.
• Procedures used in collecting and analyzing the data.
• Date and time of check-in and check-out of media from secure storage." [xxv]

E.  Form In Which The Electronic Discovery Must Be Produced

Fed. R. Civ. P. 34 requires a party to produce documents "as they are kept in the usual course of business."  Therefore, the responding party typically must produce the discovery "in the format in which that party routinely uses or stores them, provided that electronic records shall be produced along with available technical information necessary for access or use." [xxvi]   Illustrative cases include:

• In re Verisign Sec. Litig., NO. C 02-02270 JW, 2004 WL 2445243, 2004 U.S. Dist. LEXIS 22467 (N.D. Cal. Mar. 10, 2004).  The trial court overruled the defendant's objections to the magistrate order requiring documents to be produced electronically in the native format.
• United States v. First Data, 287 F. Supp. 2d 69 (D.D.C. 2003).  The court ordered the parties to produced "electronic documents[] in the native electronic format (or a mutually agreeable format)."

Courts may loosen the above requirement when opposing parties request access to proprietary or other confidential data:

• In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003).  The appeals court overturned the district court order permitting the plaintiff unfettered access to Ford's databases detailing, among other things, all customer contacts with Ford because the order permitted the plaintiff access to information without permitting Ford to object prior to its disclosure.
• Van Westrienen v. Americontinental Collection Corp., 189 F.R.D. 440 (D. Or. 1999).  The court refused to grant plaintiffs unlimited access to defendant's computer system.
• Symantec Corp. v. McAfee Assoc., Inc., No. C-97-20367-JF, 1998 WL 740807, 1998 U.S. Dist. LEXIS 22591 (N.D. Cal. Aug. 14, 1998).  The court refused to order the defendant to provide its entire source code to plaintiffs and the corresponding hard drives due to the volume and proprietary nature of the information.

Even when a party produces a hard copy version of electronic evidence, the party may also be required to produce the documentation in its electronic format as well.  Courts beginning with National Union Elec. Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1257 (E.D. Pa. 1980), have determined that Fed. R. Civ. P. 34 requires the production of the electronic format even if the requesting party already has the hard copy format.  Other cases include:

• In re Honeywell Int'l Inc. Secs. Litig., No. M8-85, 2003 WL 22722961, 2003 U.S. Dist. LEXIS 20602, at *5-6 (S.D.N.Y. Nov. 18, 2003).  The court required a non-party to produce documents in electronic format due to the hard copies being "essentially incomprehensible" and "insufficient because they were not produced as kept in the usual course of business."
• Storch v. IPCO Safety Prods. Co., No. 96-7592, 1997 WL 401589, 1997 U.S. Dist. LEXIS 10118, at *6 (E.D. Pa. July 16, 1997).  The court found "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."
• Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 1995 WL 649934, 1995 U.S. Dist. LEXIS 16355, at *1 (S.D.N.Y. Nov. 3, 1995).  The court stated that "[t]he law is clear that data in computerized form is discoverable even if paper 'hard copies' of the information have been produced . . . . [T]oday it is black letter law that computerized data is discoverable if relevant."

In contrast, however, the court in Northern Crossarm Co. v. Chem.. Specialties, Inc., No. 03-C-415-C, 2004 WL 635606, 2004 U.S. Dist. LEXIS 5381 (W.D. Wis. Mar, 3, 2004), refused to order the producing party to re-produce documents in an electronic format when the requesting party did not specifically request an electronic format in its discovery requests. 

If the discovery does not already exist in the requested format, then a court may order the producing party to convert the discovery into an electronic format.  The court, however, may order this conversion only if the requesting party agrees to pay part or all of the costs:

• In re Bristol-Myers Squibb Sec. Lit., 205 F.R.D. 437, 440-441 (D.N.J. 2002).  The court held that the requesting party pay for its electronic copies of discovery but not the costs of creating the original electronic version.
• Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 1996 WL 22976, 1996 U.S. Dist. LEXIS 563 (S.D.N.Y. Jan. 23, 1996).  The court rejected the plaintiff's argument that it did not have the resources to pay for the conversion and ordered the plaintiff to pay the defendant's costs in extracting the data.
• In re Air Crash Disaster at Detroit Metro. Airport on Aug. 16, 1987, 130 F.R.D. 634, 636 (E.D. Mich. 1989).  The court ordered the plaintiff to convert a simulation program and data on a nine-track magnetic tape if the defendant agreed to "pay all the reasonable and necessary costs that may be associated with the manufacture of the computer-readable tape."

As can be seen, courts have not been consistent in requiring the requesting party to pay the whole cost associated with reproducing the discovery in an electronic format.  Therefore, a requesting party should be clear in its discovery requests the format of documents it is requesting and a producing party should produce the discovery in the format kept in the normal course of business.

F. Shifting the Costs Associated with Collecting and Producing Electronic Evidence

The costs associated with collecting and producing electronic data also may be shifted to the requesting party when the producing party argues that the requested production would be an undue hardship or that the expense outweighs any benefit in the discovery.  This willingness to shift costs differs from the early approach taken by courts that the additional costs in producing electronic data stemmed from the decision of the responding party to store the data electronically and therefore should not be shifted to the requesting party.  Dunn v. Midwestern Indemnity, 88 F.R.D. 191 (S.D. Ohio 1980).

Courts currently consider two different, but related, sets of factors in determining whether to shift part or all of the costs associated with discovery to the requesting party:

• Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y. 2002).  The court considered the following eight factors:  "(1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incentives to do so; and (8) the resources available to each party."
• Zubulake v. UBS Warburg, 217 F.R.D. 309, 320 (S.D.N.Y. 2003).  The court modified the above Rowe factors to prevent "undercut[ting] th[e] presumption" that the responding party should bear the cost of production.  The Zubulake factors are as follows:  "(1) The extent to which the request is specifically tailored to discover relevant information; (2) The availability of such information from other sources; (3) The total cost of production, compared to the amount in controversy; (4) The total cost of production, compared to the resources available to each party; (5) The relative ability of each party to control costs and its incentive to do so; (6) The importance of the issues at stake in the litigation; and (7) The relative benefits to the parties of obtaining the information."  Id. at 322.

Judges, however, do not vigorously apply the Zubulake factors in all cases to determine whether to shift costs.  For example, in OpenTV v. Liberate Tech., 219 F.R.D. 474 (N.D. Cal. 2003), the court applied the Zubulake factors and determined that factors one and two relating to the marginal utility and factors three and five relating to the costs weighed against shifting the costs to the requesting party.  Id. at 478-79.  Factor six was neutral and only factors four and seven weighed in favor of shifting the costs.  Id.  The court ordered the parties to evenly split the costs of production "[b]ecause of the undue burden and expense involved in extracting and copying the source code . . . .  The [c]ourt finds that because the parties are similarly situated, they are to split equally the cost of extraction of the source code . . . ."  Id. at 479.  The responding party also was to bear the cost of copying the source code once extracted because "the responding party should always bear the cost of reviewing and producing electronic data once it has been converted to an accessible form."  Id. (citing Zubulake, 216 F.R.D. at 290).

The future of shifting the costs associated with extracting and producing electronic data remains unclear.  Parties, on both sides, should be prepared to argue the burden, expense and benefit of the discovery if the issue becomes a factor.

G. Effective Use of Electronic Evidence

Electronic evidence requires the same type of testimonial foundation to be admitted into evidence as regular or hard copy evidence.  This section examines the basic evidence rules regarding admissibility of documents and the specials issues that arises with electronic evidence.

1. Basic Evidence Requirements

Although the evidentiary rules require the original writing, recording or photograph be admitted to prove the contents, [xxvii] duplicates [xxviii] may be admitted "unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."  Fed. R. Evid. 1003; Ohio R. Evid. 1003.

For a document, recording or photograph to be admitted as evidence, a foundation of relevance and authenticity must be established.  To be relevant, evidence must make a fact in question either more or less likely.  Fed. R. Evid. 401; Ohio R. Evid. 401.  Authenticity requires a showing that the evidence "is what a proponent claims."  Fed. R. Evid. 901(a); Ohio R. Evid. 901(a).  Authenticity may be established through witness testimony, distinctive characteristics of the evidence and the like.  Fed. R. Evid. 901(b); Ohio R. Evid. 901(b). 

Furthermore, to be admissible, the contents of the documents may not contain hearsay, an out of court statement offered as evidence "to prove the truth of the matter asserted." [xxix]   Fed. R. Evid. 802; Ohio R. Evid. 802.  The Rules do prescribe twenty-three exceptions to the general rule, including present sense impressions, recorded recollections, records of regularly conducted activities and public records.  Fed. R. Evid. 803(1), (5), and (6); Ohio R. Evid. 803(1), (5), and (6). 

2. Special Evidentiary Issues that Arise With Electronic Discovery

a. Authenticity

The first hurdle to admitting electronic evidence is proving its authenticity.  Typically, a party must show the information to be reliable or trustworthy.  Several courts have held that a witness's testimony of printing emails or internet pages was enough to satisfy the authenticity requirements:

• Kearly v. Mississippi, 843 So. 2d 66 (Miss.Ct. App. 2002).  The court held that the witness' testimony of personally receiving and printing emails from the defendant was sufficient to prove authenticity.
• Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002).  The court refused to deem all printouts from websites inadmissible and determined that a witness authenticated documents attached to a declaration when the "pages [were] printed from the Internet . . . by [him] or under his direction."

In contrast, an Ohio court stated that "although the legal requirements for admissibility of downloaded documents may not be well established, a party's statement that 'I downloaded these pages from the internet' is probably not sufficient to authenticate a downloaded document." State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2003-Ohio-6560 (Ohio Ct. App. Dec. 9, 2003) at ¦ 70 n.1.  In Leslie, the Tenth Appellate District found that at a minimum authentication for documents copied or downloaded from the internet would require:

• Web address and path of the document;
• Date and title of the document;
• Date the document was downloaded or accessed; and
• Sworn statement to the court that the copy had not been altered from that found on the website.

Id.

A court's main concern in considering whether electronic evidence has been authenticated is its trustworthiness.  This concern arises from the ability to easily manipulate or alter electronic documents without leaving evidence of the changes.  Courts routinely refuse to admit electronic evidence due to their inability to determine whether the evidence is accurate:

• United States v. Jackson, 208 F.3d 633 (7th Cir. 2000).  The appellate court affirmed the lower court's refusal to admit internet postings from "white supremacy" groups due to the failure to authenticate the evidence.  The Seventh Circuit stated that to authenticate the postings, the defendant had to show that the groups and not the defendant posted the statements in question.
• St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999).  The court refused to admit information from the online vessel data base of the United States Coast Guard because no way exists to verify the authenticity of the information.  Specifically, the court stated that "[a]nyone can put anything on the Internet.  No Web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation.  Moreover, the Court holds no illusions that hackers can adulterate the content of any Web-site from any location at any time."  (emphasis in original).

b. Hearsay

The electronic evidence must satisfy the hearsay requirements.  While emails are clearly out of court statements, printouts from internet sites have also been held to be hearsay.  St. Clair, 76 F. Supp. 2d at 775 ("[A]ny evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception.").  If the electronic evidence is offered to prove the truth of the statements found in the document or other format, then the evidence is hearsay and must satisfy one of the exceptions to be admitted.  Bowe v. State, 785 So. 2d 531 (Fla. Dist. Ct. App. 2001).  Several courts have denied admitting electronic evidence for failing to meet the requirements of one of the hearsay exceptions:

• New York v. Microsoft Corp., No. Civ. A. 98-1233, 2002 WL 649951, 2002 U.S. Dist. LEXIS 7683 (D.D.C. Apr. 12, 2002).  The court refused to admit several emails because they were offered for the truth of the matter asserted, did not satisfy the business records exception of Fed. R. Evid. 803(6) and contained multiple layers of hearsay without establishing any exceptions to the general hearsay rule.
• Monotype Corp. v. Int'l Typeface Corp., 43 F.3d 443 (9th Cir. 1994).  The court refused to admit an email due to both the prejudicial nature of the information and the failure to establish an exception to the hearsay rule.
• United States v. Jackson, 208 F.3d 633 (7th Cir. 2000).  The court determined that even though an internet service provider could access the information posted by customers, the web postings themselves could not be construed as business records.

Typically, the following exceptions to the hearsay rules are implicated by the use of electronic data:

• The Business Records Exception, Fed. R. Evid. 803(6); Ohio R. Evid. 803(6):
  Hardison v. Balboa Ins. Co., 4 Fed. Appx. 663 (10th Cir. 2001).  The court found that Fed. R. Civ. P. 803(6) permits the admission of computer business records if a party introduces a sufficient foundation.
• Party Admissions, Fed. R. Evid. 801(d)(2); Ohio R. Evid. 803(D)(2):
  Sea-Land Servs., Inc. v. Lozen Int'l, LLC, 285 F.3d 808 (9th Cir. 2002).  The appellate court determined that the trial court should have admitted an email from the plaintiff to the defendant that was written within the scope of the author's employment as a party admission.
• Present Sense Impression, Fed. R. Evid. 803(1); Ohio R. Evid. 803(1):
  United States v. Ferber, 966 F. Supp. 90 (D. Mass. 1997).  Although refusing to admit emails under the excited utterance exception, the court found the emails satisfied the requirements for a present sense impression because they explained and the event in question shortly after it occurred.
• Public Records Exception, Fed. R. Evid. 803(8); Ohio R. Evid. 803(8):
  Lester v. Natsios, 290 F. Supp. 2d 11, 26 (D.D.C. 2003).  The court determined that emails offered by the defendant federal agency were public records, which "are generally admissible."

As with traditional evidence, a party offering electronic evidence must consider the hearsay implications of electronic evidence and develop a plan or strategy for overcoming the objection.

VII. TAKING THE PLUNGE:  LITIGATING IN THE WIRED COURTROOM

A. Rise of Technology Equipped Courtrooms

Although not consistently utilized, courtrooms across the country slowly have installed technology for use during trials and hearings.  Except for new courtrooms designed and constructed to take full advantage of the technologies available, no two courtrooms, even in the same jurisdiction, offer the exact same technological amenities due to the constraints of both the physical courtroom and court budgets.

The Montgomery County Ohio Common Pleas Court exemplifies the way one court offers diverse levels of technology in courtrooms.  Many of the courtrooms are equipped with evidence presentations systems and video transcript devices but others continue to rely upon overhead projectors, VCRs connected to television monitors and court reporters.  In an attempt to make some form of technology available in all the courtrooms, the Court has invested in a mobile system to bring some aspects of the electronic courtrooms to those not yet equipped.  In addition, even the electronic courtrooms vary based upon when the Court installed the technology.

In 1993, the College of William and Mary Law School and the National Center for State Courts joined together to form Courtroom 21, an ongoing program to determine how technology can improve and advance the legal system. [xxx]  The project includes McGlothlin Courtroom at William and Mary, generally considered to be "the world's most technologically advanced trial and appellate courtroom." [xxxi]  Courtroom 21 also offers training programs for both lawyers and judicial administrators on the use of technology in courtrooms. [xxxii]

The Federal Judicial Conference has placed a priority on bringing technology to federal courtrooms by urging that evidence presentation systems, video conferencing and electronic record taking be incorporated into every newly designed or renovated federal courtroom and retrofitted into the remaining courtrooms. Joint Administrative Office/Department of Justice Working Group on Electronic Technology in the Criminal Justice System, at 10, available at http://www.uscourts.gov/newsroom/report_w_app.pdf (last visited Jan. 29, 2005).  Although constrained by budgetary restraints, the Courtroom Technology Manual defines the preferred evidence equipment for federal district courts:  "document camera, VCR, inputs for computers, auxiliary inputs and annotation system."  Administrative Office of the U.S. Courts, at 6-1, available at  http://www.uscourts.gov/misc/courtman.pdf (last visited Jan. 30, 2005).

The largest growth in the use of technology in litigation has occurred since the late 1990s.  As of 2001, 125 federal courtrooms offered some type of electronic equipment for evidence presentation. [xxxiii]  Since then, new courtrooms have been built and equipment retrofitted into others to create additional federal electronic courtrooms.

B. System Specifications and Requirements

The specific technology available for a trial may vary not only by jurisdiction but may even by individual courtrooms.  As one prepares for trial, it is crucial to know not only what technology and equipment a courtroom has available for use but also what type of technology and equipment a courtroom is able to support. 

Typically, a court will have some type of system that will allow evidence to be displayed on a large screen to a jury and judge.  The system may be composed of simply an overhead projector or may include an evidence projector, commonly known as an ELMO, which is a camera mounted to look down on a flat surface.  An image, document, picture or other evidence, is placed on the flat screen and the camera projects the image onto either a screen or monitors placed throughout the courtroom.  These projectors also can display diagrams, maps, three dimensional objects, X-rays and CAT scans. 

Using an evidence projector has several advantages for a presentation.  First, exhibits do not have to be passed around the jury box.  Not only does this speed up the exhibition, but it also protects the fragile exhibits from inadvertent damage.  Second, evidence can be highlighted and focused on in questioning a witness without creating additional demonstrative evidence.  Most systems provide the judge with a "kill" button to turn off the display of an exhibit to the jury when the judge determines that its probative value is outweighed by the prejudice to the objecting party.

A court may also have a projector to display data from a computer or PDA onto a screen or monitors.  A projector is required to utilize PowerPoint presentations or other trial presentation software. 

Annotation equipment allows existing exhibits to be marked up to add information.  The equipment, including touch screens, light screens and telestrators, work with both evidence cameras and laptops.  Annotation allows a witness to denote a location, a path taken, emphasize a portion of an exhibit or the like. 

If an exhibit is annotated, the markings must be preserved for a court to admit them into evidence.  Although an attorney may simply describe the annotations verbally for the record, technology permits the actual annotations to be preserved.  First, the evidence projector may also include a digital camera to capture the exhibit with the annotations.  The picture then may be printed to be entered into evidence.  Alternatively, the equipment, either the evidence projector or the laptop, may be conducted to a color printer. 

C. Presentation Software Options

Although expensive and requires a user to have strong familiarity with the way it functions, trial presentation software assists in presenting a visual case to the jury incorporating documents and other exhibits.  Examples include Director Suite (http://www.trialdirector.com/), Sanction (http://www.verdictsystems.com/frames/frames.htm) and Summation Blaze (www.summation.com).  To effectively take advantage of the technology available in an electronic courtroom and the advantages of the database management program, trial presentation software is a must. 

These software programs link a variety of types of exhibits with audio or visual clips of depositions.  For example, an exhibit being discussed in a video deposition can be linked to the deposition clip.  Similarly, exhibits can also be linked to transcripts of depositions or other statements.  This linking allows the attorney to quickly and easily present the exhibit to the jury during the presentation of the deposition clip. 

The ability to search documents within the program varies by program.  The programs typically allow transcripts to be searched, but more advanced programs permit searches of videos, documents and other exhibits.  The type of searching also varies by program with only a few offering Boolean searches.

The databases involved with the document management parts of the software generally are fixed but may be modified.  This fixed structure, however, does not limit the ability of the user to group documents by folders and organize documents within the folders. 

The programs permit annotation of the exhibits.  These annotations do vary by program but may include highlighting and drawing.  Many of the programs permit the revised exhibit to be saved or printed out to maintain the annotations as a separate exhibit.  In addition, the programs typically permit video to be edited to create start and end points.

D. When Technology May Be Utilized

The American Bar Association conducted a technology survey in 2002 where 3,094 members in private practice provided responses regarding their use of technology in their practice. [xxxiv]  The survey results consistently returned responses of "don't know" in the 30-40% range when asked about the availability of hardware. [xxxv]  The survey also found that only 30% of those surveyed used a laptop in the courtroom and only five percent used trial presentation software.  The following description of ways to use technology in a courtroom cracks only the tip of the iceberg.  An attorney is limited only by her imagination.

Although attorneys appear not to be taking advantage of the opportunities, technology may be used in almost every aspect of a trial.  First, in opening statements, technology assists in emphasizing key points or documents through the use of PowerPoint or other trial presentation software.  This presentation may include a slide show of photographs, deposition testimony or other information or a computer generated recreation of a particular incident. 

During trial, an attorney may use technology in many ways while questioning a witness.  First, trial presentation software or evidence presentation equipment may be used to highlight discrepancies in trial.  For example, the video deposition testimony may be played through the trial presentation software or other video equipment while also displaying the written transcript to emphasize both auditorily and visually the difference between the previous and current testimony.  A simpler method would be to display a blown-up version of the deposition transcript through the evidence presentation software with the discrepancy highlighted or pulled out to focus the jury to the particular language in question.

An attorney may also have a witness annotate an exhibit to clarify aspects of the testimony.  For example, in criminal cases or others involving an identification of some type, the witness could annotate a map or other exhibit detailing his and others exact locations during the event.  Although this type of demonstration is possible without the annotation software and hardware described above, the additional technology allows the original exhibit to be maintained without annotations and each witness to create an exhibit detailing his own testimony.

In addition, computer animated demonstrations can assist the jury with complicated, detailed testimony of how an event occurred.  For example, in a personal injury or products liability case, a simulation would be able to display to the jury the events that lead to the injury.  Similarly, in a patent infringement case, a computer simulation could assist the jury in visualizing and understanding the protected and allegedly infringing processes. 

In courts equipped with video conferencing equipment, attorneys can question witnesses without the witness appearing live in the court.  This option permits the advantages of a witness to testifying "live" without the associated costs for witnesses located a distance from the court. 

Finally, in closing arguments, an attorney, through trial presentation software, can link related evidence together to present a cohesive story of the way the evidence proves each element of his case.  He can focus the jury both visually and verbally with comments to specific documents, exhibits or testimony.  An attorney may display the verdict forms to the jury while detailing his view of the proper outcome of the case.

You should always remember when utilizing technology as part of your trial presentation to HAVE A BACK-UP PLAN.  Technical glitches will happen:  light bulbs will burn out, computer programs will crash, hardware will not be compatible.  Even though the exhibits to be used during trial may be stored in some type of software, an attorney should bring hard copies of the key exhibits in case of emergencies.  An attorney should know not only how he plans to present a case with the technology but also using flip tablets and "low tech" presentation items in case the technology fails.

E. The Art of Persuasion:  Getting Their Attention and Keeping It

Although technology assists in presenting evidence and speeds up a trial, if the technology does not assist in grabbing a jury's attention or keeping it, then it has failed to assist your trial.  Technology should enhance your presentation to jurors and not distract the jury from the issues or points you argue.

An attorney should remember that an individual is five times more likely to remember something he both sees and hears and twice as likely to be persuaded if the arguments are supported through visual aids. [xxxvi]  Therefore, witness testimony should be enhanced and reinforced through visual presentations.  These presentations could be highlighted deposition transcripts, charts, maps and the like.  The witness should refer to the visual aids during testimony to be most effective.

An attorney will lose the jury's attention if the presentation of evidence is slowed while trying to make the technology work.  Practice, practice, practice with the technology both in and out of the courtroom to learn the systems and the potential problems that might arise during a presentation.  A jury will not penalize a party if the technology presentation hiccups during trial, but jurors may miss key points while paying attention to the attempts to fix the technology and not the evidence.

Similarly, the technology should compliment the case, not overtake the case.  An attorney needs to ensure that the jury pays attention to all aspects of the evidence and presentation and not just that displayed on screens or monitors.  If the jury ignores the witness on the stand because of the visual presentation, then it won't be able to judge the credibility of all the witnesses and that may be an important aspect to the case.

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[i] Summation has released WebBlaze, a browser based product permitting access to the database without installing the application.  WebBlaze may be integrated with certain versions of the Summation product to provide internet access to case data hosted internally.

[ii] LexisNexis refers to these concise statements of the law as Headnotes, while West refers to them as KeyCite Notes.

[iii] Seventh Cir. R. 53(b)(2)(iv); Ninth Cir. R. 36-3; Fed. Cir. R. 47.6(b).  The Second Circuit Local Rules do not contain an express prohibition against the citation of unpublished opinions nor do they expressly permit the citation.

[iv] Memorandum from Judge Samuel A. Alito, Jr. to Judge David F. Levi (May 14) at 1-2, available at http://www.uscourts.gov/rules/jc09-2004/AppendixA.pdf (last visited Jan. 28, 2005).

[v] Id.

[vi] Letter from Judge Haldane Robert Mayer on behalf of the Judges of the United States Court of Appeals for the Federal Circuit to Mr. Peter G. McCabe (Jan. 6, 2004) ("Federal Circuit Letter"), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-086.pdf (last visited Jan. 31, 2005).

[vii] Id.

[viii] Id.

[ix] Letter from John L. Coffey et al. to Hon. Samuel A. Alito, Jr. (Feb. 11, 2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-396.pdf (last visited Jan. 31, 2005).

[x] Federal Circuit Letter.

[xi] Id.

[xii] Letter from Judge Kenneth F. Ripple to Hon. Samuel A. Alito, Jr. (Feb. 12, 2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-335.pdf2 (last visited Jan. 31, 2005). 

[xiii] Id.

[xiv] Howard J. Bashman, "Unpublished Opinions Should Be Allowed to Be Cited"  The Legal Intelligencer, May 10, 2004, available at LexisNexis Legal News Publications.

[xv] Casemaker includes databases for Connecticut, Georgia, Idaho, Indiana,  Maine, Massachusetts, Michigan, Nebraska, New Hampshire, North Carolina, Ohio, Oregon, Rhode Island, South Carolina, Texas and Vermont.  In the Spring of 2005, Casemaker will be adding access to Alabama, Colorado and Utah, while Washington will be added in the Summer of 2005.  A database for Mississippi is also planned for release but no date has been released.  http://www.lawriter.net/casemaker/schedule.php (last visited Jan. 25, 2005).

[xvi] For example, Texas opinions from as far back as 1929 may be searched, while access to Ohio opinions goes back only to 1981.  The Texas library also contains access to several municipal codes for the state's largest cities, while Connecticut's contains access to some federal district court opinions.  Ohio's library contains neither of this information.

[xvii] Some appellate court districts may be searched for longer periods of time at the site.

[xviii] http://www.google.com/bot.html

[xix] www.google.com (last visited Jan. 25, 2005).

[xx] To access the databases at Dayton, Cleveland, Cincinnati and other libraries, you need a library card from that library.  This requirement may be eased in the future as Ohio libraries issue one card with privileges at all public libraries in the state.  This transition is scheduled for sometime in 2007.

[xxi] Madden v. Wyeth, No. 3-03-CV-0167-R, 2003 WL 21443404, 2003 U.S. Dist. LEXIS 6427, at *3 (N.D. Tex. Apr. 16, 2003).

[xxii] Black's Law Dictionary 1409 (7th ed. 1999).

[xxiii] White v. Ford Motor Co., 142 Ohio App. 3d 384, 388, 755 N.E. 2d 954 (2001).

[xxiv] Adam I Cohen and David J. Lender, Electronic Discovery:  Law and Practice ¤ 3.04[A][2] (citing Bart S. Wilhoit, Comment, Spoliation of Evidence:  The Viability of Four Emerging Torts, 46 U.C.L.A. Law Rev. 631, 644 (1998)).

[xxv] LexisNexis Applied Discovery Fact Sheet, "5 Steps for Gathering Electronic Data Effectively" available at http://www.lexisnexis.com/applieddiscovery/lawlibrary/whitePapers/ADI_FS_5StepsDataGathering.pdf (last visited Jan. 25, 2005).

[xxvi] Jicarilla Apache Nation v. United States, 60 Fed. Cl. 413, 416 (Fed. Cir. 2004).

[xxvii] Fed. R. Evid. 1002; Ohio R. Evid. 1002.

[xxviii] The Rules define a duplicate to be "a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original."  Fed. R. Evid. 1001(4); Ohio R. Evid. 1001(4).

[xxix] Fed. R. Evid. 801(c); Ohio R. Evid. 801(c). 

[xxx] http://www.courtroom21.net/company/index.html (last visited Jan. 30, 2005).

[xxxi] Id.

[xxxii] Id.

[xxxiii] Sue Reisinger, "Trial by Wire"  Daily Business Review, September 12, 2001, available at http://www.law.com/jsp/statearchive.jsp?type=Article&oldid=ZZZ8RPHXJRC (last visited Jan. 30, 2005).

[xxxiv] Information on the survey may be found at http://www.abanet.org/tech/ltrc/presentations/techshow2003/techshow2003_files/frame.htm (last visited Jan. 30, 2005).

[xxxv] Id.

[xxxvi] Fredric I. Lederer and Samuel H. Solomon, " Evidence Technology in the High Tech Courtroom" presented at The Fifth National Court Technology Conference national Center for State Courts Session (September 1997), available at http://www.ncsconline.org/D_Tech/CTC/CTC5/103.HTM (last visited Jan. 27, 2005)