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Electronically
Stored
Information
The Complete Guide
to Management,
Understanding,
Acquisition, Storage,
Search, and Retrieval

Second Edition

David R. Matthews
Electronically
Stored
Information
The Complete Guide to
Management, Understanding,
Acquisition, Storage,
Search, and Retrieval

Second Edition
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Electronically
Stored
Information
The Complete Guide to
Management, Understanding,
Acquisition, Storage,
Search, and Retrieval

Second Edition

David R. Matthews
CRC Press
Taylor & Francis Group
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Boca Raton, FL 33487-2742

© 2016 by Taylor & Francis Group, LLC

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Contents

Fo re wo rd ix
P r e fa c e xi
Acknowledgments xiii
Author xv

C h a p t e r 1 W h at I s E l e c t r o n i c I n f o r m at i o n , and Wh y
S h o u l d Yo u C a r e ? 1
1.1 Introduction 1
1.2 Electronically Stored Information and the Federal
Rules of Civil Procedure 1
1.2.1 Changes to the Federal Rules of Civil Procedure 3
1.2.1.1 Rule 1: Scope and Purpose 3
1.2.1.2 Rule 16(b)(5) and (6): Pretrial
Conferences; Scheduling
Management 3
1.2.1.3 Rule 26 4
1.2.1.4 Rule 37 Safe Harbor 11
1.2.1.5 Rule 34(b) Producing Documents
Procedures 13
1.2.1.6 Rule 33(d) Interrogatories to Parties 15
1.2.1.7 Rule 45 Subpoena 15
1.2.1.8 Form 35 15
1.2.2 Federal Rules of Evidence 16
1.2.2.1 FRE 502 17
1.2.2.2 FRE 901 17
1.2.2.3 FRE 802 18

v
vi C o n t en t s

1.2.3 Case Law Examples 18

1.2.3.1 Social Media Cases 20
1.2.3.2 Spoliation Cases 23
1.2.3.3 Rulings of Judge Scheindlin:
Zubulake, Pension, and National
Day Labor 29
1.2.3.4 Reasonably Accessible Cases 36
1.2.3.5 Metadata Cases 40
1.2.3.6 Claw-Back and Privilege Cases 41
1.2.3.7 Preservation/Production Cases 44
1.2.3.8 Attorney Competence Cases 48
1.2.4 Other Federal Rules That Affect Electronic Data 49
1.3 Problems with ESI as Discoverable Evidence 50
1.4 Why and How This Affects the Practice of Law 55
1.5 How This Affects Business Organizations 59
1.6 Effects on Government Entities 60
1.7 What This Might Mean to You as an Individual 60

C h a p t e r 2 Tr a n s l at i n g G e e k : I n f o r m at i o n
Te c h n o l o gy v e r s u s E v e r yo n e E l s e 63
2.1 Introduction 63
2.2 Role of IT 63
2.3 Information Technologist’s Perspective 72
2.4 Information Technology as an Ally 76
2.5 Translating Geek 77

C h a p t e r 3 W h e r e I s E l e c t r o n i c a l ly S t o r e d
I n f o r m at i o n ? I t ’ s E v e r y w h e r e ! 79
3.1 Introduction 79
3.2 Basics 80
3.3 Database Systems 87
3.4 E-Mail Systems 91
3.5 File and Print Servers 94
3.6 Instant Messaging Services 99
3.7 Mobile Devices 101
3.8 Physical Access Records 105
3.9 Telecommunications 109
3.10 Cellular Devices 119
3.11 Digital Video 126
3.12 Internet or Online Data 130
3.13 Storage Media 144
3.14 Internet of Things (IOT) or of Everything (IOE) 147
3.15 Event and System Logs 148
3.16 Desktop Computer Facts 149
3.17 Metadata and Other Nonapparent Data 154
3.18 Conclusion 157
 C o n t en t s vii

C h a p t e r 4 W h o ’ s i n C h a r g e H e r e ? A l l i e s , O w n e r s ,
a n d S ta k e h o l d e r s 159
4.1 Introduction 159
4.2 The (Long) List of Stakeholders 159
4.2.1 Information Technology Professionals 159
4.2.2 Legal Staff 162
4.2.3 Records Managers 163
4.2.4 Auditors 163
4.2.5 Human Resources 164
4.2.6 Department Heads, Vice Presidents, and
Executives 164
4.2.7 Physical and Information Security Personnel 165
4.3 Ownership of Data 165
4.4 Data Control Considerations 170
4.5 Required Skill Sets and Tools 173

C h a p t e r 5 Th e H u n t : R e c o v e r y and Acquisition 177

5.1 Introduction 177
5.2 Where, Oh Where, Has My Data Gone? 178
5.2.1 Applications as a Vital User Interface 178
5.2.2 Hidden or Restricted Access Data 183
5.2.3 Encrypted Data 188
5.2.4 Deleted or Corrupted Data 190
5.2.5 Proprietary Data or Data Stored on
Obsolete Media 191
5.3 Privileged, Sensitive, and Inaccessible Data
Management 196
5.4 Proving Ownership and Integrity 203
5.5 Marking Time: How Time Is Recorded and
Ensuring Integrity 211
5.6 Legal and Forensically Sound Acquisition 215

C h a p t e r 6 K e e pi n g Yo u r Tr e a s u r e s : P r e s e r vat i o n
an d Manag e m e nt 223
6.1 Introduction 223
6.2 Securing the Data 223
6.3 Access Control and Management 226
6.4 Organization and File Management Techniques 232
6.4.1 Day-to-Day Organization 232
6.4.2 Management of Data over Time 236
6.4.3 Response to Litigation or Audits 238
6.5 Safe Storage Issues and Considerations 241
6.6 Litigation Hold 246
6.7 Spoliation: The Loss of Relevant Data 248
6.8 Automated Technical Solutions 250
viii C o n t en t s

C h a p t e r 7 S h a r i n g I s G o o d : D i s s e m i n at i o n and

Reporting 255
7.1 Introduction 255
7.2 Format Issues: Original or Usable? 255
7.3 Mediums for Transfer 259
7.4 Creating Readable Reports 261
7.5 Tips for Depositions and Expert Witness 264
7.6 Conclusion 266
A pp e n d i x I: L i n ks and References for M o r e I n f o r m at i o n 267
A pp e n d i x II: F o r m s and Guides 273
A pp e n d i x III: L i n k s to Te c h n i c a l S o f t wa r e S o l u t i o n s 291
Foreword

Matthews has approached e-discovery from a fresh, new

perspective—one that is understandable to the layperson as well as the
technologist. Electronically Stored Information: The Complete Guide to
Management, Understanding, Acquisition, Storage, Search, and Retrieval
will guarantee that you know more about e-discovery than you thought
possible. A must read for anyone in the information technology and legal
professions, the book provides invaluable information to be proactive or
reactive in responding to requests of electronically stored information. The
flow of the book from the first chapter to the last is clear, simple, and
thorough—any attorney who desires to become a technically savvy advo-
cate for his or her corporate legal department or law firm will have this
book at hand. This book goes a long way in removing the intimidation fac-
tor between IT, the corporate legal department, and outside counsel. This
book should be required reading for anyone in a computer science, infor-
mation technology, or law-related program, and is now part of the Digital
Forensics and the Law course I instruct. If you want to get up to speed on
e-discovery and actually understand what you read, you’ll buy this book.
Steve Hailey
President/CEO
CyberSecurity Institute
Digital Forensic Examiner and Educator

ix
Preface

Welcome one and all. That is not just a pleasantry, but my way of
letting you know that whether you are an attorney, judge, paralegal,
business manager or owner, or just one of the ever-growing population
of computer users, you will all benefit from what follows.
We all live in a new world in which we are surrounded in an
ever-deepening fog of data. The data define who we are, for better
or worse. The data contain information about our livelihoods, our
education, our finances (or lack thereof), our health (or lack thereof),
our history, and probably our future.
And yet very few of us understand how the data are created, where
data are stored, or how to retrieve or destroy data (if that is indeed
at all possible!). This book is for all of you, whatever your need or
interest. In it we will discuss the reasons you need to know about elec-
tronic data as well as get into great detail about the how, what, when,
and where of what is known in legal circles as ESI, or electronically
stored information.
You can use this as a reference and simply go to the chapters you
are interested in, or read through if you like. I try to keep it entertain-
ing and simple to understand, even when we get into some pretty
esoteric engineering concepts. I am pretty sure no one is planning
to earn his or her computer science or electrical engineering degree
with this book, so concepts will be as simple as possible and related to

xi
x ii P refac e

stories and illustrations that will help make sense of these sometimes
difficult ideas.
So read on without trepidation, dear reader. I promise it will be
enlightening, and perhaps even fun. If nothing else, you will have
some interesting new ways to entertain your geek friends or impress
your non-geek friends at your next party.
Acknowledgments

This book could not have been written were it not for the many patient
and supportive people in my community in the Puget Sound area of
Washington State.
There are too many to name them all, but the many information
security, legal, and computer forensics professionals with whom I have
shared these ideas have been extremely generous with their thoughts,
wisdom, and advice.
I especially thank my colleague and mentor, Michael Hamilton,
who has given me the support to learn more about these issues and the
time to collaborate with others. He is a font of knowledge and just an
all-around good friend and person.
I also want to add a big thanks to my original Information Security
mentor and guru, Kirk Bailey. I will not forget the day when, in
answer to my question of what would be the most beneficial skill to
learn, he said “forensics.” It changed my life in many ways.
I would also like to acknowledge my good friend, colleague, and
mentor, Steven Hailey, whose gracious generosity, incredibly deep
wisdom and assistance I can always count on whenever I get stuck.
And of course I need to thank my family for putting up with those
long hours of husband and daddy being hunched over the computer
trying to get this all done.

x iii
Author

David Matthews has worked in the information technology (IT)

field since 1992. He began working for the City of Seattle as the
technology manager for the Legislative Department (City Council)
in 1998. In early 2005, he was selected to be the first Deputy CISO
for the city. In his work for the city, he developed and created an
incident response plan that is compliant with the National Incident
Management System (NIMS)/Incident Command System (ICS);
updated and extensively rewrote the city’s information security policy;
and created and taught training courses on information security and
forensics. He created an IT primer for the city’s law department as
part of his collaboration with them on e-discovery issues.
In 2012, he was recruited by Expedia, Inc. to develop and lead
their global cyber incident response team. He created and exercised a
plan that integrated with their network response and disaster recov-
ery plans and led a team located both in the United States and India.
He retired in 2014 and is now doing consultant work mostly with
local governments and critical infrastructure to enhance their cyber
response and resiliency capabilities.
He is a participant and leader in regional information security orga-
nizations. He was the public-sector co-chair of the U.S. Computer
Emergency Readiness Team (US-CERT)/Department of Homeland
Security (DHS) sponsored North West Alliance for Cyber Security

xv
xvi Au t h o r

(NWACS). With NWACS, he has worked with the Pacific Northwest

Economic Region (PNWER) nonprofit to sponsor information secu-
rity training for Supervisory Control and Data Acquisition (SCADA)
operators and managers, a risk management seminar, four regional cyber
response exercises, and four Blue Cascades disaster scenario exercises.
He is the founder and co-chair of an organization called the Cyber
Incident Response Coalition and Analysis Sharing (CIRCAS) group.
This is an organization with participants from the public, private,
academic, law-enforcement, military, and non-profit sectors with
the mission to develop information and resource sharing capabilities
to better protect everyone. That organization has been written into
a new Cyber Annex to the State of Washington’s Comprehensive
Emergency Management Plan and is working to develop resource
typing that will allow state emergency management to call upon
public and private resources during a cyber emergency.
Matthews is also an active participant in many local, national, and
international information security, forensics, and e-discovery orga-
nizations. He is the former chair and still an active member of the
local Critical Infrastructure Protection subcommittee of the Regional
Homeland Security team, and is also a member of the American Bar
Association’s Science and Technology and Electronic Discovery com-
mittees. He published an article on active defense in the Information
Systems Security Association (ISSA) journal and has presented at
many emergency management and information security conferences.
His most recent presentation on e-discovery, called “New Issues In
Electronic Evidence,” has been presented to records managers and
information technology and security audiences in corporations such as
REI and Starbucks, was presented as a peer-to-peer session at RSA,
and was given as a continuing legal education course for the U.S.
Attorney’s office in Seattle and the City of Seattle’s law department.
He holds the titles of Certified Information Systems Security
Professional (CISSP), Certified Information Security Manager
(CISM), Digital Recovery Forensics Specialist (DRFS), and Cyber
Security Forensic Analyst (CSFA).
Matthews is a native of the Seattle area whose interests spread
much further than IT or even information security. He is an avid
reader, writer, hiker, biker, gardener, and a black belt in Shitoryu
karate. He and his wife live with their three children north of Seattle.
 1
W hat I s E lectronic
I nformati on , and W hy
S hould You C are ?

1.1 Introduction

The best place to begin our discussion about electronic evidence is

to make sure we understand what is meant by the term electroni-
cally stored information (ESI). Because that is a term most often
used in a legal context, we begin by looking at the rules that define
how electronic evidence is used in a civil court case. We will also
talk about other laws and rules that deal with electronic evidence
in legal matters.
From there we take a look at case law, as that is extremely impor-
tant to understanding the ever-evolving ways data are changing the
legal landscape.
Finally, we’ll spend some time looking at how this fog of data
affects you personally or as part of an organization or a professional.

1.2 Electronically Stored Information and the Federal Rules

of Civil Procedure

One of the most likely reasons you might be interested in ESI is if

you are involved in a civil lawsuit. Of course, if you are an attor-
ney or paralegal, that is perhaps more likely than if you are just
Mr. or Ms. John Q. Citizen. But as a business owner or manager,
the chances are actually pretty likely that you or your organization
might be involved in some type of legal action (Figure 1.1). In my
former careers in both the public and private sectors, the organiza-
tions I worked with often dealt with over 400 legal issues per year.
Most of those were settled without any need to go to court, and some

1
2 El ec t r o ni c a l ly S t o red In f o rm ati o n

Figure 1.1 Legal documents in the electronic world have become ubiquitous and overwhelming.

of them included criminal or other courts besides civil law. But any
organization or individual can find themselves in court.
This chapter specifically discusses the Federal Rules of Civil
Procedure (FRCPs) because they were amended in December 2006,
and have been revised several times since then to specifically address
ESI and to better define the ways ESI needs to be handled. However,
it is important to understand that rules in any legal action are going
to be similar to those we will discuss here. Because these rules offer
good examples of what to expect in other legal actions, we specifically
look at all of the pertinent sections of the FRCPs.
We also spend some time looking at rules of evidence, because
those have also been evolving to address the new frontier of electronic
evidence. We spend time considering some case law as well, because
that is the crux of the way this evolving area of law is changing and
growing.
We begin with a run-through of the specific rules that were
amended in December 2006 as well as some of the more pertinent
and interesting changes and clarifications that are being considered
in the current set of amendments (final changes and amendments to
the FRCP were approved by the Supreme Court and Congress and
published in December 2015).*

* Lange, Michele (October 7, 2014). Part III—FRCP amendments: The long and
winding road. The eDiscovery Blog. Retrieved from http://www.theediscoveryblog.
com/2014/10/07/part-iii-frcp-amendments/.
 W h at Is It ? 3

For the first time, in 2006, these rules outlined a specific

responsibility of organizations to identify electronically stored data
that might be relevant in a case and specify if the organization feels
it is reasonably accessible. Organizations are also expected to iden-
tify data that might be relevant but that they consider not reasonably
accessible. These are important considerations, and we spend more
time talking about this concept later.
First, though, here is a quick breakdown of the rules that were
changed or are being revised. We follow each of these with a more
in-depth look and consider how the rules affect you and the organiza-
tions you work with.*

1.2.1 Changes to the Federal Rules of Civil Procedure

1.2.1.1 Rule 1: Scope and Purpose The current change to the first rule,
while not specific to e-discovery or electronic evidence is neverthe-
less significant. In the new rule, the language has been changed
to emphasize how important it is for the parties to cooperate.
Specifically it says “These rules … should be construed, adminis-
tered, and employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and proceeding”
(emphasis added).
This is, in effect, laying down the theme of the new rules. You will
see this theme reflected throughout the amendments. Parties and the
courts need to consider, first and foremost, how to apply the rules to
ensure the most even playing field, at the least expense and burden
possible.

1.2.1.2 Rule 16(b)(5) and (6): Pretrial Conferences; Scheduling Management

The changes to Rule 16(b) in 2006 were designed to give the court
a way to define rules about disclosure, privilege, and the ways that
discovery of electronic evidence will be conducted. For instance, what
kinds of electronic data will be considered work product (discussions
between attorneys and their clients, or work that counsel is doing

* Cornell University Law School, Legal Information Institute, Federal Rules of Civil
Procedure (as amended to December 1, 2010): http://www.law.cornell.edu/rules/
frcp/. Retrieved February 11, 2011.
4 El ec t r o ni c a l ly S t o red In f o rm ati o n

on behalf of their client that should not be disclosed). The rule also
discusses the methods that should be employed by all parties to man-
age the discovery of their electronic data.
These discussions and agreements take place in what are called the
Rule 16 pretrial meet and confer conferences, where both sides get
together and discuss what electronic evidence they expect to acquire
and preserve for the case at hand, how they would like it to be pro-
duced, and the general management of what is called the electronic
discovery or e-discovery process. Agreements are made between the
parties, and those agreements are recorded and become an important
part of the case at hand. We look at some case law later where the
agreements that were made in these pretrial meetings were used by
the court to decide on the correct ruling on a question of evidence.
The bases of the agreements that come out of the Rule 16 meetings
are established by Rule 26, which is discussed next and which governs
the provisions of discovery and the duty to disclose.
In the current amendments, there are two changes to Rule 16(b).
The first is in Section (3)(B)(v), and this is again indicative of the
theme of cooperation. It states that the scheduling order may
“direct that before moving for an order relating to discovery the
movant must request a conference with the court.” As noted, this
is to encourage the parties to work things out in an efficient and
cooperative way.
The second is again in Section (3)(B), but in (iv) and it relates to
claw-back. Claw-back rules are about when a party can basically say,
“oops” and ask the other party to return some evidence it produced (or
the court to not admit it in the case) that should have been protected.
In this section, the changes refer to the Federal Rule of Evidence
502, which we’ll discuss later. Basically, it simply allows for any agree-
ments reached under that rule of evidence to also be considered in
whether produced evidence should be able to be “clawed” back.

1.2.1.3 Rule 26 General Provisions Governing Discovery; Duty of

Disclosure Rule 26 has received a lot of attention in the most recent
set of amendments. We’ll look more specifically at those changes and
their significance.
However, in 2006, one of the first changes was in 26(A)(ii), which
states parties must provide: “a copy—or a description by category and
 W h at Is It ? 5

location—of all documents, electronically stored information, and tangible

things that the disclosing party has in its possession, custody, or con-
trol and may use to support its claims or defenses, unless the use would
be solely for impeachment” (emphasis added).
The term electronically stored information was added to specifically
call out the fact that this evidence was now considered as important
as any other type of evidence.
Specifically, in 26(f), parties are required to meet and confer about
ESI early on and discuss things such as
• What the parties will rely on as relevant electronic evidence
(what types of electronic data such as e-mail, documents,
etc.—see Chapter 3 for detailed descriptions of the types of
electronic evidence)
• How that data will be stored and preserved by each party
• Whether the data are considered reasonably accessible
• What will be considered privileged or work product
• What formats will be expected for production of the data
(e.g., will the parties produce the data with or without
metadata?—see Chapter 3 for more on metadata—and will
they produce final drafts or all drafts, and will the production
be in the format that the data is stored in natively, or in some
other format that the parties agree on?)
That last point can be extremely important. Again, when we look at
case law, we see examples of this coming up in rulings because one
party does not like the way documents were produced, but the other
party points to these agreements and argues (and the courts agree)
that they did what they were asked to do.
In order for attorneys to follow the prescripts of Rule 26, they
now have a stated duty to understand their client’s information tech-
nology (IT) systems and their policies and procedures for records
retention.
This will require those of you who own or manage a company, or
manage IT or records for an organization, to work closely with your
counsel to help them understand how your systems and policies work.
The courts will hold you and your attorneys responsible under Rule 26
for any electronic evidence that is relevant to the case, so working
together to clarify what electronic data are relevant and accessible is
6 El ec t r o ni c a l ly S t o red In f o rm ati o n

of paramount importance (and you should not wait until you have a
legal case at hand before discussing this).
It is equally important to ensure that you and your legal representa-
tives understand where the data are physically and logically and how
the data will be accessed, acquired, and preserved in a forensically
sound manner (to preserve the integrity and nonrepudiation of the
evidence). In Chapter 3, we take a detailed look at all of the different
types of electronic evidence and where and how they are stored. This
is information you should use as you explore and discuss with your
attorneys the specific electronic data for which you are responsible.
In a survey commissioned by the Deloitte Forensic Center and con-
ducted by the Economist Intelligence Unit (EIU),* it was found that
40% of respondents did not feel like their organization’s IT and legal
staff communicated well and 35% did not have a team to respond to
e-discovery requests. In fact, in many cases, the people who should
have known about e-discovery issues were found to be painfully
unaware of the issues. This serves to further point out the depth of
this problem and the importance of you and your organization com-
ing to grips with it as soon as possible.
If you have reason to consider data inaccessible, you will need to do
a good job of explaining and documenting why that is the case.
Rule 26(b)(2) was amended to specifically address this issue. It basi-
cally says that if relevant electronic data are not “reasonably accessible”
because the data would cost too much to produce or be too much of a
burden or are simply no longer available, then you are not required to
produce the data as evidence. It also attempts to set some procedures
for how to shift costs if data are considered inaccessible.
Unfortunately, the term “reasonably accessible” is not specifically
defined in the rules. However, there is considerable case law that gives
some idea of what the courts are expecting.
Data that are live, online on servers, desktops, laptops, and so
forth, at the time of expected litigation will be considered accessible
of course. But also, data that are well documented and organized,

* Deloitte, E-Discovery: Mitigating risk through better communication: http://www.

deloitte.com/view/en_US/us/Services/Financial-Advisory-Services/Forensic-Center/
26d4c52d2bdf8210VgnVCM200000bb42f00aRCRD.htm. Retrieved February 15,
2011.
 W h at Is It ? 7

such as indexed backup tapes that can be retrieved without undue

burden to your organization, have been deemed reasonably accessi-
ble. Information that can be gleaned via query to a database has been
ruled accessible as well.
Finally, what is called near-line data, defined as data stored on
removable media, such as the backup tapes we referred to earlier, or
just CDs and DVDs, USB sticks, or even external, removable hard
drives, are most often considered reasonably accessible.
Data that have not been well indexed or documented or that have
been fragmented or corrupted in some way and would require exten-
sive work to convert or recover in order to be used as evidence may be
considered not reasonably accessible. Also, data that have been deleted
or overwritten may be considered not reasonably accessible. However,
it is important to recognize that this is a relatively gray area, and we
see examples of that when we look at case law. It is very important,
again, to work with your counsel to decide what you and your organi-
zation feel is and is not accessible and to carefully document your rea-
soning. The opposing party has the right to ask the courts to evaluate
any claims you make that some data are inaccessible. They can make
what is called a motion to compel production if they feel the evidence
that you are claiming is inaccessible is important to their case. Then
it becomes your responsibility to convince the court that the data
are really inaccessible or that the production of the data would be an
overly expensive burden.
Even then, as we see in some of the cases we look at later, the courts
can decide that the evidence is important enough to the case that the
burden is worth the trouble. They may, however, use what is known as
cost shifting and compel the requesting party to pay for all or part of
the cost of recovery to balance out the issue of burden.
There is another important point to understand in this respect,
however. Courts will consider your policies and procedures and how
well they are documented and followed.
This is extremely important, especially the parts about how those
policies are followed. Having good policies is an important first step,
but if no one in your organization knows those policies or follows
them because they are too complex or they were never trained, the
courts are going to be looking at what actually happens, not at what
you say should happen (Figure 1.2).
8 El ec t r o ni c a l ly S t o red In f o rm ati o n

Figure 1.2 Policies are worth little if they are too complex or too numerous to be understood and
followed.

For instance, if you have a policy that all e-mail is deleted after
45 days, but your organization only “remembers” and follows that
policy after you receive notice of litigation (thereby deleting some
possibly relevant electronic evidence), the courts are going to be less
than sympathetic to your claim that those e-mails are not reasonably
accessible.
Further, if your organization’s failure to follow good practices has
resulted in important electronic evidence being a burden to access,
the courts are likely to be unsympathetic to your claims. They are also
less likely to shift the cost or resource burdens to the other party if the
reason the data are inaccessible is because of your own poor practices.
Here is a good example of what I am referring to.
I heard a story of a consulting organization that was contracted to
work with a company to assist with the indexing and organization of
all of the archived data. When they arrived they asked the company
IT staff if they had a backup system in place. The IT person explained
that yes, indeed they did. Their process was to take laptops that they
were no longer using and back up all of the important documentation
onto those laptops once a month. Then they would store those laptops
in their warehouse.
Now, this was a relatively large organization with a lot of differ-
ent departments, all of which followed this rather unique process for
archiving records. The consultants asked to be shown the warehouse.
 W h at Is It ? 9

Imagine the looks on their faces when they were shown a rather
large room stacked with laptops with no labels, no indexing or orga-
nizing system, and not even a dating procedure. They obviously had
their work cut out for them.
The reason this organization called on these contractors was
because they had recently been sued and their attorneys had informed
them that they might be responsible for producing archival informa-
tion about their company and its practices.
It would probably be realistic for them to claim that data were not
reasonably accessible, don’t you agree? Yet, I can almost promise you
that this is a case where the courts would come down on the side of
their opposition if the data were considered important to the case.
The courts would be very likely to expect this organization to accept
the burden of whatever costs and resources were required in order to
locate, preserve, and produce that electronic evidence. And that is
simply due to their poor practices.
Again, this is something to be cognizant of as you discuss this in
your organization. Be sure you are following accepted best practices
for your records management and that everyone in your organization
is aware of those practices and following them carefully.
If you happen to be the requesting party in a case similar to this,
it can be to your benefit to have quality computer forensic resources
either in house or by contract. We discuss forensics procedures and
capabilities later in the book. That may give you an advantage over
your opponents by virtue of your ability to access data that might
otherwise be considered inaccessible, such as deleted, corrupted, or
even encrypted data.
Another part of Rule 26 (26(b)(5)) was changed to address how
electronic data that were inadvertently produced can be retrieved.
This is called the claw-back provision, but as with all of these issues,
it can be difficult in real-life cases to establish that information should
have been privileged or considered work product and should not be
allowed to be entered as evidence. In some cases, the courts have ruled
that privilege is waived by the data having been released, and because
of its relevance or importance to the opposing party’s case, you are not
allowed to recover it or disallow it as evidence.
We spend more time discussing the work product doctrine and
attorney–client privilege later in this book (see Chapter 5), because
10 El ec t r o ni c a l ly S t o red In f o rm ati o n

this is a very important part of evidence law that will be helpful for
you to understand as you deal with e-discovery issues. It is also an
evolving part of the law as courts learn to deal with the ramifications
of electronic evidence.
Finally, Rule 26(f) requires everyone to get together early on to
agree on the protocol for electronic discovery.
This is an important discussion for you and your counsel to have
ahead of time. If you go into the Rule 16 meet and confer with a good
plan of action, understanding what protocols and formats of electronic
evidence are most easily available to you and most advantageous to
your overall case and use of resources, you will be ahead of the game.
By understanding the what, when, where, why, and how of all the
electronic data you own (which is the point of this book after all), you
can make good decisions about what kinds of agreements you hope to
make during the meet and confer conference.
All of the protocols and agreements based on these rules will be
adopted as a court order under the Rule 16 meet and confer, so under-
standing their ramifications and being well prepared can be a huge
help for you as an individual or for your organization, should you be
involved in litigation.
In the current amendments to Rule 26, we note an emphasis on
proportionality. This is in direct response to the ongoing escalation of
costs associated with discovery–for the most part engendered by the
incredible growth in the quantity of electronic data.
In the amendment to Rule 26(b)(1), regarding the scope of evidence
that should be discoverable, it states that discoverable evidence should
be “proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely
benefit.”
Again, this is an effort by the writers of the rules to create a level play-
ing field and (hopefully) to keep the expense of discovery under control.
The new amendment goes on to note, however, that this evidence
need not be admissible but can still be discoverable if everyone agrees.
The only other amendment to Rule 26 related to proportionality is
to Rule 26(b)(2)(C)(iii), wherein they basically just refer back to the
 W h at Is It ? 11

above when discussing when the court should “limit the frequency or
extent of discovery.”
In Rule 26(C)(1)(b), they have amended the wording to address the
allocation of costs by including “or the allocation of expenses” in the
specific terms a court can add to a protective order.
Once again, the writers are hoping to give the court tools whereby
it can encourage responsible and inexpensive options for discovery
from all parties.
Finally, as in Rule 16(b)(3)(B) above, the new amendments in
Rule 26(f)(3) include a reference to the Federal Rule of Evidence 502
as another reason that can be included in an agreed-upon order for
production as a remedy for the accidental production of privileged
data. This would be included as part of the “Discovery Plan” that is
outlined in this rule.

1.2.1.4 Rule 37 Safe Harbor When you are thinking about what is
reasonably accessible, you also need to consider a concept called spo-
liation. This might be thought of along the lines of “the dog (or com-
puter) ate my homework (or e-mail).”
You might be accused of (and sanctioned for) spoliation if you go
into court with bad arguments for relevant electronic evidence being
not reasonably accessible because you allowed it to be deleted or lost
or damaged somewhere along the way, when you should have real-
ized it would be important to a case that you should have known was
coming (all of these “should haves” are important and as usual pretty
ambiguous, so we talk about them more later).
I think spoliation was best described in a case known as Mosaid
Technologies, Inc. v. Samsung Electronics Corporation from the New
Jersey District courts in 2004 as follows: Spoliation is “the destruction
or significant alteration of evidence, or the failure to preserve prop-
erty for another’s use as evidence in pending or reasonably foreseeable
litigation.”*

* Applied Discovery, Online Law Library, Case Summary, MOSAID Techs. Inc. v.
Samsung Elecs. Co.: http://www.applieddiscovery.com/ws_display.asp?filter=Case%
20Summaries%20Detail&item_id=%7B781012C0-1342-4A84-8BA9-9BC1FC9
FDE57%7D. Retrieved February 25, 2011.
12 El ec t r o ni c a l ly S t o red In f o rm ati o n

There is that “reasonably foreseeable” language again. You have to

love the courts for piling on this type of ambiguous language that
gives attorneys and all of us plenty of opportunities to guess what
they might mean. We talk a lot more about this later, and you will see
examples when we look at case law of how various court cases have
treated this idea. It is a great idea to consider all of these cases and
work with your legal counsel to decide what you consider a reasonable
trigger to foresee litigation so that you are all operating from the same
principles.
But when we are considering whether data are reasonably accessi-
ble, we might be tempted to the spoliation of evidence by virtue of the
assumption that if it is not accessible, it will not need to be produced,
and therefore we can ignore it and not worry about its preservation. It
is important to understand that the opposite is true. Even if electronic
data are not reasonably accessible, if the data are relevant to a case,
you have a duty to preserve the data as long as it is possible to do so.
The only “get out of jail free” card in this deck is Rule 37(f) as
amended in 2006 to include electronic evidence. This rule, often
called the Safe Harbor rule, says that you cannot be sanctioned for
spoliation of evidence if you have destroyed that evidence as part of
your “routine, good faith” operations and policies.
But let me insert a huge caveat here—one you heard before and
will find many times in this book: The courts will look at your prac-
tices and not your policies if and when you claim safe harbor under
this rule.
Consider, for instance, a case in which an organization claims that
important and relevant electronic evidence was lost as a result of its
routine, good faith policies to recycle videotape after a given amount
of time.
However, during deposition of their IT staff, it is revealed that
for the most part they never recycle their videotapes and in fact have
video dating back to the ancient days before video was digital. Their
policy states that they will recycle videotapes, but that policy had never
been followed before now. Suddenly, upon finding this particular tape
that might have been damaging to their case, they remembered their
policy and had a whole group of tapes recycled.
Obviously, this is not going to fly with the courts, and the Safe
Harbor rule is going to fall flat on its face as an excuse. In fact, in case
 W h at Is It ? 13

after case we find that this can be extremely difficult to prove unless
you have very well-documented and audited policies and procedures.
Rule 37(f) also sets rules for sanctions against parties who refuse
to participate in good faith in the discovery conference procedures
outlined in Rule 26(f). This is basically the teeth behind the Rule 26
guidelines for the “meet and confer” and is meant to encourage all
parties to set a level playing field early in the litigation process to avoid
costs and delays later on.
In the current amendments Rule 37(e) has some important new
language that better defines how courts should decide whether to
sanction parties for failing to provide electronic evidence. In fact, they
have changed the word “provide” to “preserve.”
This is important, because again it hearkens back to the idea that
everyone should be playing fair and this should not take so much
time and money. Organizations now will have the duty to preserve
electronically stored information but only to produce it if it has been
agreed upon by all parties as relevant and important to the case.
The second part of this change is also notable in that it notes that
if ESI that should have been preserved is lost and not retrievable
because reasonable steps were not taken, a court should consider
whether that lost evidence actually creates “prejudice” to the other
party. In other words, does the loss of that evidence harm the other
party’s case?
If the court feels that is the case, the amendment goes on to say that it
“may order measures no greater than necessary to cure the prejudice …”
Finally, it clarifies that a bit more by suggesting that if the court
finds that there was intent to commit spoliation, the court may impose
greater sanctions from instructions to the jury that it should presume
the evidence would have been bad for the spoliators case, up to a dis-
missal of the case or a default judgment.
These sanctions can be significant to a case and we will see case law
later in which judges threw the book at bad actors. However, it seems
the writers of these new amendments are trying to set some standards
to assist courts in making better and more thoughtful decisions about
when sanctions are appropriate.

Another impor-
1.2.1.5 Rule 34(b) Producing Documents Procedures
tant rule that was amended in 2006 was Rule 34(b), which allows
14 El ec t r o ni c a l ly S t o red In f o rm ati o n

the requesting party to set protocols for how it would like electronic
documents to be produced. The idea was to ensure that everyone
agreed up front how the evidence would be produced and in what for-
mat (native format or something more accessible for the parties, with
or without metadata, etc.).
Again, this is an important thing to discuss with your attorneys.
You can be a big help to them if you have talked beforehand about
how data are stored in native format, what is included, and what is
stripped away. You can make decisions up front about how you retain
information so that it will be the most advantageous to you whether
for litigation or just for records retention and archiving purposes. But
considering this in the light of possible litigation can be illuminating
and may change the decisions you and your organization make.
For instance, your organization may be required by law to retain
business-related records for a given period of time. One of my for-
mer organizations had to keep contract documentation for a period
of 6 years, and other types of business decision documentation for
3 years.
However, the format in which we keep those documents can be
equally important to consider. We will probably not store copies of
drafts because those might contain edits and comments that the
preparers of those documents were considering but that were never
meant for public consumption and did not in fact become part of the
final documentation.
Understand, however, that those edits and comments might be
considered important and relevant to opposing counsel in a legal
dispute. And they might equally be considered detrimental to your
organization.
This is not to suggest that you should have policies that purposely
destroy any documentation that might ever be used against you. That
would be both impractical and in some cases illegal. It is just to sug-
gest that as you and your organization are developing records retention
policies and procedures, you should carefully weigh the advantages
and business needs around what and how you retain electronic data,
against the unnecessary retention of metadata, draft documents, and
so forth, which might be used against you at some point in the future.
In the more recent changes, the language in Rule 34(b)(2)(B) has
been clarified to say that if a party objects to production, it must
 W h at Is It ? 15

“specify the grounds for objecting.” And that it is permitted, if agreed

to, for parties to respond with copies of documents or ESI instead of
originals.
Once again, the more your attorneys understand about how and
where data are stored, the better they will be able to address these
requests during the Rule 34 agreements.
Finally, Rule 34(b)(2)(C) is amended to clarify that if you are
making an objection to responding to an evidence production, you
must state whether any requested evidence is being withheld based on
your objection.
This is again to ensure that everyone is very clear about what is
being produced and why, and to try to give the courts some ammuni-
tion for discouraging parties from playing “hide the ball.” Before and
without that language change there have been cases where an objec-
tion was made, responsive evidence was withheld, but no one noticed
or tried to remedy the situation until it was too late.

In the 2006 amendment to

1.2.1.6 Rule 33(d) Interrogatories to Parties
the rules, the change was simply intended to ensure that electronic
records were included when business records were requested. This
can allow parties to provide answers to interrogatories (sets of writ-
ten questions asked by the opposing party during the pretrial dis-
covery process that must be answered in writing under oath within
a specified time) via electronic media such as e-mail or electronic
documents.

1.2.1.7 Rule 45 Subpoena This rule simply made it clear that sub-
poenas to produce evidence should include electronic evidence. This
basically intended to put an end to any arguments about whether elec-
tronically stored information should be considered “documents” in a
court of law.

1.2.1.8 Form 35 One other change was made in December 2006

to the Federal Rules of Civil Procedure—that was in the standard
form for discovery agreements, Form 35 (Figure 1.3). Basically, this
template was revised to include a reminder that electronically stored
information needed to be considered and included in all discovery
agreements.
16 El ec t r o ni c a l ly S t o red In f o rm ati o n

Figure 1.3 A small sample of Form 35. The full text is included in Appendix II.

1.2.2 Federal Rules of Evidence

The other important rules to think about when considering electronic

evidence in a court case are the Federal Rules of Evidence (FREs).
As with the FRCPs, though these apply to federal cases, these rules
are generally accepted in all types of court cases, and their precepts
can be considered and applied to any type of litigation that you might
encounter.*
We consider a few of these that are specifically relevant to your
better understanding and management of electronic evidence.
However, please realize that these are a relatively complex set of rules
and I am not an attorney. The intention is to simply give a general lay-
person’s idea of what these might mean to you and your organization,
but not a legal education.
These rules often address the important understanding of privilege
and the work product doctrine. We spend much more time on these
issues when we discuss recovery and acquisition of electronic evidence
in Chapter 5.

* Cornell University Law School, Legal Information Institute, Federal Rules of

Evidence: http://www.law.cornell.edu/rules/fre/. Retrieved March 11, 2011.
 W h at Is It ? 17

1.2.2.1 FRE 502 FRE 502 specifically addresses the attorney–client

privilege and gives protection from inadvertent disclosure, similar
to what is discussed in FRCP Rule 26(b)(5) and in the changes to
Rule 16(b)(3)(B) and Rule 26(f)(3), as noted earlier. If you notice your
mistake quickly enough, you can use this rule of evidence to ask the
courts to disallow the use of electronic information that should not
have been disclosed to the opposing parties because it was work prod-
uct or privileged. Rule 502(b) allows you to request the return of inad-
vertently produced privileged or work product evidence if you took
reasonable steps to prevent the error and noticed it relatively quickly
and responded promptly.
Again, this is a place where preparation and good procedures make
all the difference. If you or your organization have a good records
management process in place that everyone knows about and follows
carefully, it will be much easier to winnow out the relevant electronic
data for any type of litigation or even for an audit or other records
request.
By creating and sustaining good records retention practices you
will be less likely to inadvertently disclose evidence that should be
treated as privileged. You will also need to have and practice good and
thorough discovery procedures. We spend time outlining those pro-
cedures and the tools and skills necessary later in the book. For now,
suffice it to understand that, as always, the more you can put in place
up front and the more you practice and refine those processes, the
better you will fare when it comes time for litigation or other records
production needs.
When we look at case law we see some good examples of how this
process works for or against a party in court depending most often on
the quality and efficacy of their practices and procedures.

1.2.2.2 FRE 901 Another of the FREs that is important to under-

stand is FRE 901. This is basically the rule that requires that any
evidence admitted in court be authenticated in some manner.
This goes to the heart of nonrepudiation and the integrity of elec-
tronic evidence, and this is another subject we spend more time on in
later chapters because of both its complexity and importance.
Electronic evidence, unlike physical evidence and the documentary
evidence that was dealt with historically, presents huge challenges
18 El ec t r o ni c a l ly S t o red In f o rm ati o n

when it comes to being able to prove its authenticity and that it has
not been tampered with in any way.
This is another case where excellent forensics capabilities can be an
important advantage to you or your organization. A good computer
forensics expert has the tools, expertise, and experience to be able to
establish authenticity to a much greater degree of certainty than is
possible without those resources. Again, we discuss this in greater
detail later in the book.

1.2.2.3 FRE 802 Finally, FRE 802 is called the Hearsay Rule.
There is a dynamic and ongoing discussion in the courts about how
this rule should be applied to electronic evidence. Hearsay is defined
in Rule 801 as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.”
Rule 802 states that hearsay is not admissible as evidence, except,
and there follows a group of exceptions (that we will not delve into
here), which might allow a statement into evidence that was not made
by a declarant (i.e., someone making a sworn statement in court under
penalties of perjury) while testifying at the actual trial.
Electronic evidence by its very nature could nearly always be con-
sidered hearsay, so there are many cases where that evidence has been
challenged and the courts have had to decide whether it is admissible
under one of the exceptions to the hearsay rule.
We spend more time with this later as well, when we look at some
case law. But this is an evolving area of the law and a great example
of how the world of electronic data has changed and challenged the
legal landscape.

1.2.3 Case Law Examples

In the next section we talk about recent rulings that affect e-discovery
and electronic evidence. The thing to note about these is that most
are relatively recent rulings. This gives you an idea of how fast this
area of law is changing and evolving. It is meant to impress upon you
the need to stay in tune and up to date with these cases so you can be
of service to your organization in understanding their liabilities and
responsibilities.
 W h at Is It ? 19

However, it is also important to understand how case law is applied

in deciding cases. Each area of the country has different federal court
districts, as well as local and state jurisdictions. Cases used as prec-
edent will be chosen first within their own jurisdictional areas and
type of cases so that they are judged to be most similar.
For instance, a civil case would not usually rely on a criminal
case ruling, nor would a case in the federal district of New York be
likely to take into account a ruling that happened in a California
local jurisdiction. Even if it was in federal court in California, a
court in New York would give it less weight than a case found more
locally.
It should be noted, though, that certain federal district courts,
such as the South District of New York, have a well-established
expertise specific to electronic evidence rulings. For that reason,
those cases are often quoted as precedent setting even though they
might not be specifically related to the jurisdiction of the case at
hand.
The point of understanding and referring to case law as part of
litigation is to understand the precedent that has been set in similar
types of cases, in similar communities, and with similar arguments.
The further you get from those similarities, the less weight a court is
likely to put on the conclusions that were arrived at in the referenced
cases.
Yet that in no way diminishes the excellent understanding and
perception of the evolving nature of legal perceptions around elec-
tronic evidence that can and should be gained by a close study of the
most recent cases. The cases quoted below have all made a difference
in the way courts in all jurisdictions are thinking about electronic
evidence and the rules that surround them. I include the court refer-
ences in the quotations, however, so that you can better understand
from whence these cases derive and their relative relevance to your
particular jurisdiction.
Since I completed the first edition of this book, many more cases
have been added to this list and the precedent continues to evolve. Of
course, new technologies are adapted more and more, and that also
affects the case law.
In this new edition, I have broken the different cases down into
categories so that you can reference specific areas of interest.
20 El ec t r o ni c a l ly S t o red In f o rm ati o n

Figure 1.4 This case is one of many that involved social media sites.

1.2.3.1 Social Media Cases

1.2.3.1.1 Bass v. Miss Porter’s School (D. Conn. 10/27/09) Defining

Relevancy* This case involved the bullying and harassment of a
student using the social media website Facebook (Figure 1.4).
The plaintiff’s attorneys for Bass decided they would provide
limited documentation of the Facebook activities of their client and
argued that the rest were irrelevant to the case.
However, on review, the court disagreed and ended up ordering the
production of all Facebook documentation.
In this case, the court felt that the plaintiff should not be the one to
decide relevance. The judge suggested that the issue of relevance is in
the eye of the beholder and that Facebook usage is like a snapshot of
the user’s relationship and state of mind. Thus, the court felt that all
available electronic data from the Facebook archives and pages of the
plaintiff should be included as evidence.
The lesson here is that courts are the ultimate arbiter of what is
relevant evidence. That means that as an attorney, manager, organi-
zation, or even an individual, you have the responsibility to be able
to locate, acquire, preserve, and produce any electronic evidence that
might be relevant to a case if you have reason to believe litigation is
possible. Even if you do not think it is relevant, the courts or your

* The relevance of Facebook evidence: http://bowtielaw.wordpress.com/2009/11/02/

in-the-eye-of-the-beholder-the-relevance-of-facebook-evidence/. Retrieved March 9,
2012.
 W h at Is It ? 21

opposing counsel might disagree, so your duty is to preserve anything

that might possibly be construed as relevant (a challenging thought!).

1.2.3.1.2 Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010) Private

Information This is another case involving social media sites. In this
breach of contract, copyright infringement case, the defendants were
asking the court to allow subpoenas that were requesting all of the infor-
mation from any social media sites that the plaintiff had accounts with.
However, this case went a little differently from the last one in that
the court held that messages from social media sites were subject to
the Stored Communication Act and chose to quash any subpoenas
that were seeking private messages.
The court’s ruling was based on its interpretation of the Stored
Communications Act. The Stored Communications Act is a federal
law that basically guarantees the privacy of communications stored
on electronic media depending on the method of communications,
transmission, and storage of that data. The act requires the operators
of that storage media to obtain permission from the originators of the
data before releasing it.
With that in mind, the court in this case ruled that depending on
the plaintiff’s privacy settings, the data requested by the defendant in
its subpoena would probably be considered private.
However (and this is an important qualification), the court also
said that if the plaintiff’s privacy settings were adjusted in a way that
allowed the general public to access the messages, the court might
allow acquisition of those messages.
There is an important lesson here for those of you using social
media or for any organizations that either allow or encourage their
employees to use social media. It is imperative to be aware that your
data will only be considered private if you have actually taken the
correct steps to ensure it is not available to the general public. Once
again, this takes us back to one of the main themes of this book: your
actions are what will really count in the end.

1.2.3.1.3 Romano v. Steelcase (N.Y. Sup. Ct. 2010) Another Social Media
Privacy Case In this case, the defendant, Steelcase, sought the plain-
tiff’s current and historical Facebook and MySpace pages including
deleted information.
22 El ec t r o ni c a l ly S t o red In f o rm ati o n

The plaintiff argued that its social media information should be

considered private. But here again we have a good example of how
different judges will make different rulings based on the facts of the
case and their own understanding of the prevailing laws.
This time the court ruled that the plaintiff had no reasonable
expectation of privacy because Facebook and MySpace specifically did
not guarantee “complete privacy” in their user contracts—you know,
those long legal documents that you have to click “Yes” on whenever
you sign up for a new account or load up some software. How many
of you have ever actually read one of those? They are legally binding
contracts, so we should all read them carefully, but hardly anyone ever
does.
Here is a case where that contract was actually called upon to
decide a legal matter. So they really are important even though they
are ridiculously verbose and difficult to get through.
As noted previously, every case will be different depending on
many factors. In this case, the court felt that the information was
material and relevant, and the defendant’s need for access out-
weighed the plaintiff ’s privacy concerns. Using the contract as legal
support, the court therefore ruled against the plaintiff and they had
to produce all of the documentation from their social media sites as
requested.

1.2.3.1.4 Lester v. Allied Concrete Company (Circuit Court VA, September,

2011) Original Award Reduced Due to Withholding of Facebook Evidence In
this case, the plaintiff had won a wrongful death suit and was awarded
$10 million. However, in his final ruling, the judge took $4.13 mil-
lion off of the award and agreed to an additional $722,000 in legal
fees to the defendant when he found that the plaintiff and his attorney
purposely deleted photos from Lester’s Facebook account and with-
held information about those photos.
The court, on finding that the attorney had advised his client to
delete those photos, required the attorney to pay $522,000 of the legal
fees himself. This is considered to be possibly the largest ever sanction
against an attorney.
The lesson here is that social media data are absolutely electroni-
cally stored information under the rules and are being treated that
way in court. It will be important to consider that and ensure you have
 W h at Is It ? 23

done what is necessary to preserve that evidence if you are involved in

a court matter.

1.2.3.2 Spoliation Cases Some of the following cases are older, but
I wanted to include them to illustrate specifically the kinds of ways
the courts address spoliation. If you do not remember what that is,
check back a little in this chapter where we discussed the federal
rules.
Other newer cases are also noted here, as they illustrate the evolu-
tion of the way courts are addressing spoliation issues.

1.2.3.2.1 Coleman v. Morgan Stanley (Florida Cir. Ct. 2005) This

case resulted in a default judgment against Morgan Stanley. They
were ordered to pay $604 million in compensatory damages and
$850 million in punitive damages for failure to produce 2000 backup
tapes.

1.2.3.2.2 Brown v. American Home Products Corporation Diet Drugs

(E.D.Pa. 08/28/2000) (Fen-Phen litigation) You may remember this
case. It involved the selling of a weight loss drug that, as it turned out,
could cause some serious side effects, such as lung disease.
They were sanctioned for spoliation because they did not produce
relevant e-mails. You can see why they might have preferred not to
when you read this quote from one of the defendants to their attorney:
“Am I off the hook or can I look forward to my waning years signing
checks for fat people who are a little afraid of some silly lung problem?”*

1.2.3.2.3 Wachtel v. Health Net, Inc. (NJ District Ct 2006) In this

case, facts were taken as established, which means the court instructed
the jury to assume the facts that were presented by the plaintiff’s
counsel were true even though the evidence no longer existed (because
it had been destroyed). The defendant’s exhibits were stricken from
evidence, and their witnesses were barred.
Further, the courts required the defendant to pay reimbursement of
plaintiff’s fees and costs, and to pay for a discovery master. A discovery

* Fen-Phen article: http://articles.philly.com/1999-08-01/business/25482928_1_

fen-phen-ahp-pondimin, pg 1. Retrieved March 9, 2012.
24 El ec t r o ni c a l ly S t o red In f o rm ati o n

master is a very well paid individual who is an expert in discovery, and

the court was basically telling the defendant that because they were
obviously inept at locating, preserving, and producing relevant evi-
dence, they were now ordered to pay for an expert to assist them.
Finally, the court fined the defendants for discovery violations.
Basically, the courts took a very dim view of the incompetence or
actual intransigence of the defendants and their attorneys and threw
every spoliation sanction possible at them.

1.2.3.2.4 Zubulake v. UBS Warburg (S.D. N.Y. 2003–2005) This is

one of the most important cases regarding electronic evidence and
e-discovery. We spend more time with this and two other rulings
by Judge Scheindlin, who wrote this ruling and who has come to be
known as one of the experts in electronic law. She was one of the first
to really consider many of the issues surrounding our new world of
electronic data and its effect on our legal system.
This was a suit brought by Zubulake against UBS for gender dis-
crimination, failure to promote, and retaliation. This case lasted many
years and has several different rulings, all of which set important
precedents for the treatment of electronic evidence and electronic
discovery.
In this case, the judge ordered an adverse inference instruction
to the jury, telling them to assume that the e-mails that were not
produced by the defendant, UBS, would have negatively impacted
their case. She said that the defense counsel was partly to blame
for not locating and producing those e-mails for several reasons.
One was that they failed to continue to monitor their clients and
ensure their clients understood that they were required to preserve
relevant e-mails as evidence under a litigation hold even though it
went on for years. The defendants were required to pay $29 million
in damages.

1.2.3.2.5 Medcorp, Inc. v. Pinpoint Tech., Inc. (D. Colo. 6/15/10) In

this case, the court found that the plaintiff willfully spoliated 43 hard
drives. A special master was assigned to assist the court with the dis-
covery and preservation of relevant electronic evidence. He found that
the plaintiffs had destroyed 43 hard drives that most likely contained
important evidence for the case.
 W h at Is It ? 25

The special master ordered adverse inference to the jury, suggesting

that the court inform the jury to assume that the evidence that was
destroyed would have adversely affected the plaintiff’s case. The
judge agreed and also ordered the plaintiff to pay all the defendant’s
expenses to the tune of a payment of $89,365.88.

1.2.3.2.6 KCHServs., Inc. v. Vanaire, Inc. (W. D. Ky. 7/22/09): Trigger

to Reasonably Expect Litigation In this case, the plaintiff, KCH
Services, was the maker of a software application. They learned that
Vanaire was using their application without having licensed it, and
they called and spoke to one of the vice presidents at Vanaire. The
person from KCH informed the Vanaire VP that they had reason
to believe Vanaire was using their software without a license. The
vice president at Vanaire did what some would consider a reasonable
thing and ordered all of the unlicensed software to be deleted from
their company’s computers.
However, here’s the rub: that phone call from KCH to Vanaire
was considered notice of litigation by the court. They basically said to
Vanaire, “You should have known that KCH is a very litigious organi-
zation and that when they called you like that, it was extremely likely
that litigation would follow.”
Vanaire tried to argue that under the Safe Harbor rule (I’m sure
you remember reading about that under Rule 37(f) in the Federal
Rules of Civil Procedure section earlier in this chapter), they should
not be sanctioned. They said that this was part of their “routine and
good faith” business practices.
The court disagreed and said the deletion in this case was not cov-
ered by the Safe Harbor rule because Vanaire should have realized by
virtue of that phone call that they would be sued and that therefore
that application being on the computers would be considered relevant
evidence that must be preserved and produced in court.
The court ordered adverse inference instruction to the jury, basi-
cally telling them to assume that the plaintiff’s claims of Vanaire’s
having used the software without license were true even though there
was no evidence existing on the computers anymore.
The lesson here is to really think about what can and should be
considered a trigger for a reasonable expectation of litigation. Spend
time working with your legal counsel to set those expectations and
26 El ec t r o ni c a l ly S t o red In f o rm ati o n

the procedures that you will follow to put a litigation hold in place to
preserve the relevant electronic evidence.

1.2.3.2.7 Olson v. Sax (E. D. Wis. 6/25/10): Safe Harbor Rule In

this case, the plaintiff, Olson, was terminated for theft of company
property. The actual theft was recorded on videotape on July 22, 2009.
The plaintiff, Olson, sued for wrongful termination.
In discovery the tape was requested by the plaintiffs, but the
defendants informed the court that it had been erased. They claimed
protection from sanctions under the Safe Harbor rule because the
recycling of their digital videotapes was done automatically in their
normal course of business (Figure 1.5).
What is particularly interesting about this is that the court said the
defendants were or should have been aware of the possible litigation
by August 11, 2009, and the tape had not yet been overwritten at that
time. So, based on the last case we discussed, one would assume they
should be sanctioned for spoliation of evidence.
However, in this case the court declined to impose sanctions absent
evidence that the destruction was in “bad faith.” The judge basically
said that because they did not purposely spoliate the evidence, there
was no justification for sanctions.
The lesson here is that different courts can and will make different
decisions based on the facts of the case and the judge’s discretion. Do
not think this is ever cut and dried. It is important to read the entire

Figure 1.5 Caught on tape, but where is the tape?

 W h at Is It ? 27

case sometimes to try to get an idea of what the facts in the case were
and to try to understand why the court makes its decisions.
The bottom line is that these are just human beings, and their
decisions will be based on their best understanding of the law and
precedent, as well as on the facts of the case at hand. So do not assume
you know how a case will be decided simply based on your under-
standing of precedence in past cases.

1.2.3.2.8 Kipperman v. Onex Corp. (N.D. GA. 5/27/10): A Textbook

Case The judge in this case called it a “textbook case of discovery
abuse,”* so obviously this one belongs in this book, which may be used
as a textbook. Basically, the defendants in this case did everything
wrong in their very poor e-discovery processes. The lesson here is that
you can no longer slide through, professing ignorance of electronic
evidence and the rules that now surround that evidence in modern
courts. The judges just will not stand for it.
The court in this case ruled the defendants were guilty of incom-
plete discovery, deliberate misrepresentations to the court, and mul-
tiple failures to abide by court orders. They were slapped with over
$1 million in monetary sanctions that they were ordered to pay to the
plaintiffs to cover all the attorney fees the plaintiffs had paid due to
the defendant’s intransigence. Ouch.

1.2.3.2.9 United Central Bank v. Kanan Fashions, Inc. (N.D. Ill. 9/21/11):
Spoliation Sanctions That Hurt the Party but Not Their Attorney In this
case, we get to see what happens when you try to fool the judge. The
defendants, Kanan Fashions, had a server with relevant informa-
tion stored on it that was slated to be sold as part of an acquisition.
However, they were told numerous times by their attorneys that they
had a duty to preserve it due to the court case they were involved in
with the United Central Bank.
They “forgot” and let the server be sold and moved to a company in
Dubai where it was subsequently reimaged and “lost” to production
for the case. The court called this “elaborate spoliation” and recom-
mended sanctions against the defendants.

* ralphlosey.files.wordpress.com/2009/06/kipperman-v-onex-corp.doc, pg. *18–16.

Retrieved March 9, 2012.
28 El ec t r o ni c a l ly S t o red In f o rm ati o n

The judge declined to sanction the attorneys because they were lied
to and kept in the dark about the server being sold and sent away.
Bottom line: it is always the responsibility of the organization in
the end. If you do a good job as an attorney and document that you
did so, you can avoid sanctions.

1.2.3.2.10 Pension Comm. of Univ. of Montreal Pension Plan v. Bank of

Am. Secs., LLC (S.D.N.Y 1/15/10) This is another case ruling by Judge
Scheindlin (of Zubulake fame). In this case, the judge addresses elec-
tronic evidence preservation obligations and spoliation in great detail.
She includes some important discussions on the culpability of the
litigating parties for the preservation and production of evidence, as
well as burdens of proof for the parties to comply with in presenting
their evidence. Finally, she discusses appropriate remedies when these
guidelines and rules are not followed.
In the next section, we spend some quality time looking at both
Zubulake and Pension, as well as a new ruling by Judge Scheindlin
because of the relevance of her thinking. Her guidance regarding
electronic evidence, e-discovery, and this whole new world of data
and its legal ramifications is extremely important and illuminating in
our understanding of the direction the courts will take.

1.2.3.2.11 Crews v. Avco Corp., No. 70756-6-I, 2015 WL 1541179

(Wash. Ct. App. Apr. 6, 2015): Willful Disregard Can Put You in Contempt
In this more recent Washington State case, the defendants were
held in contempt and basically had the book thrown at them with
severe sanctions, including that all allegations against the defendant
were deemed admitted and that all of the defendant’s defenses were
stricken. The court found that their “continued disregard and viola-
tion of the discovery and contempt orders” was willful. Ultimately,
the jury awarded one plaintiff $17,283,000 (the other plaintiff settled
after the compensatory damages phase).
The defendant tried to rely on their document retention policy as
an explanation for not producing evidence, but the court disagreed,
at first because they did not produce the retention policy and then
because, when they got around to it, the policy was far too vague to
specifically support their assertion that it had been the reason for their
not retaining the relevant evidence.
 W h at Is It ? 29

The lesson here is that if you are going to rely on your data retention
policy to assert inaccessibility, you had better be very familiar with
what it actually says and ensure that you have followed it to the letter.

1.2.3.3 Rulings of Judge Scheindlin: Zubulake, Pension, and National

Day Labor Most of the following cases, except for the National
Day Labor case (more about production and preservation), can
be categorized broadly as being related to spoliation. However,
Judge Scheindlin’s rulings tend to cover a large area of electronic
evidence law.
Judge Shira Scheindlin, the U.S. District Judge in the Southern
District of New York (SDNY) located in Manhattan, is one of the
most respected and referenced judges when it comes to understanding
the evolving world of electronic evidence and e-discovery. Beginning
with her landmark rulings in Zubulake, she has been one of the most
thoughtful and forward-thinking jurists around all of the many issues
that face the legal system in this changing environment.
Even though her decisions and opinions are not necessarily binding
outside of her jurisdiction, the obvious wisdom and thoughtful con-
sideration she brings to these issues is highly respected and is used by
judges nationwide as guidance.
We therefore look more closely here at these three cases and the
specific issues that were raised in each of them, as well as at Judge
Scheindlin’s treatment and opinions of those issues.

1.2.3.3.1 Zubulake v. UBS Warburg (S.D.N.Y. 2004)* As we dis-

cussed previously in the section on spoliation sanctions, Zubulake was
a groundbreaking case on many fronts. Judge Scheindlin considered
and wrote some very wise opinions on e-discovery issues well before
the federal rules were amended in 2006. It is thought that many of the
changes made to those rules had their precedent in the thoughts and
opinions rendered in Zubulake.

* Zubulake VI decision details: http://www.ediscoverylaw.com/2005/03/articles/

case-summaries/zubulake-vi-court-rules-on-various-motions-in-limine-and-
precludes-admission-of-certain-evidence-unless-defendants-open-the-door/.
Retrieved March 9, 2012.
30 El ec t r o ni c a l ly S t o red In f o rm ati o n

Laura Zubulake was an up-and-coming manager in her company,

UBS Warburg. By all accounts she was an aggressive, hardworking
person doing what she needed to in a male-dominated society and
workplace to get ahead. She began to lose out on promotions and to
get poor performance reviews and was finally terminated.
She filed an employment discrimination suit and in that suit she
argued that there was e-mail evidence between some of the managers
and other employees that would prove her case.
In the first and third Zubulake rulings, the court considered and
wrote precedent-setting opinions on two specific issues related to
e-discovery and electronic evidence. Those were the issues of what
should be considered accessible and not reasonably accessible, and
how to shift costs appropriately when there was a cost and resource
burden involved in the production of evidence.
Zubulake was able to produce over 450 pages of what she consid-
ered to be relevant e-mails. However, the defendants produced only
350 pages of documents total, of which only 100 pages were of e-mail.
The plaintiff asked that UBS locate more e-mail by searching backup
tapes and other archives.
But UBS argued that was an undue burden and would be a huge
expense. They requested that the courts rely on a former ruling called
Rowe (Rowe Entertainment, Inc. v. The William Morris Agency—SDNY
2002) that had set forth an eight-factor test to decide who should pay
costs. The defense felt that, based on that precedent, any costs incurred
to recover and produce the requested e-mails should be shifted to the
plaintiff.
However, Judge Scheindlin disagreed. She felt that the older
decision unfairly favored the shifting of costs away from the respond-
ing party and that its eight factors were used too much like a check-
list, while she advocated a seven-factor list with the factors listed
in order of importance and cost-shifting decisions being weighed
accordingly.*
The court also connected this discussion to the idea of accessibility
because the judge argued that the burden of producing documentation

* Case Law Update and E-Discovery News, Recent E-Discovery and Computer
Forensics Court Decisions, 3(August; 8), 2003: https://www.krollontrack.com/
newsletters/clu_0803.html. Retrieved April 6, 2011.
 W h at Is It ? 31

is often predicated on the ease of access. If recovering and producing

electronic evidence was unduly burdensome and expensive, it would
affect the balance of the decision on who should pay.
So, beginning with accessibility, in these first and third opinions,
Judge Scheindlin described five categories of electronic storage, the
first three of which she considered reasonably accessible. If you read
the earlier part of this chapter, you will notice the similarities to what
we already discussed in this regard.
She described the following three types of data storage that she
considered reasonably accessible:
1. Online data on hard drives or other media used regularly in
the course of business
2. Near-line data such as CDs or DVDs (and now we would
include USB drives)
3. Off-line storage such as magnetic tape as long as it was easily
recoverable and recovered and used on a regular basis in the
normal course of business (today we might also include data
stored on the Internet or “cloud”)
Then she described two more that could be considered not reason-
ably accessible:
1. Backup tapes, especially if they were not normally accessed
and it required a burden of time, resources, and money to do so
2. Fragmented, erased, and damaged data
In her subsequent discussion of the shifting of costs, she set forth
the following seven-factor test that, as noted previously, she listed
with the most important factors first:
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
32 El ec t r o ni c a l ly S t o red In f o rm ati o n

6. The importance of the issues at stake in the litigation

7. The relative benefits to the parties of obtaining the information
In these rulings, the court decided to first ask the defendant, UBS,
to produce all of the relevant e-mails that it had on servers, CDs, and
five backup tapes as requested by the plaintiff and at its (the defen-
dant’s) expense. The judge said she would decide on cost shifting after
they reviewed the contents of the backup tapes and considered the
seven factors listed above.
Of course, when the restoration was complete, both parties asked
the court to force the other party to pay the full cost of recovering
the backup e-mails. The defendant estimated the cost for restoration
of the evidence at close to $20,000, but said the full costs would be
over $270,000 including the money it would cost for their attorneys
to review the evidence. Judge Scheindlin applied her seven-factor test
and reached the conclusion that the plaintiff should have to pay 25%
of the cost of the restoration only, excluding the attorney review costs.

1.2.3.3.2 Pension Committee of the University of Montreal Pension Plan v.

Banc of America Securities, LLC (S.D.N.Y. 2010)* Pension is an inter-
esting twist and reiteration of the precepts put forth in Zubulake.
The plaintiff, the University of Montreal, filed this suit asking for
$550 million in losses that resulted from the liquidation of two hedge
funds managed by the defendants. There were actually 96 separate
plaintiffs being represented in this case.
The defendants argued that there were some large gaps in the elec-
tronic documentation produced by 13 of the 96 plaintiffs, and they
asked the court to issue sanctions for failure to preserve and produce
both electronic and paper documentation. These defendants, called
the Citco Defendants in the decision, asked for dismissal of the com-
plaint, which would have been the ultimate sanction, or whatever
sanction the court deemed appropriate.
The judge ruled pretty much in the defendant’s favor and wrote
a very detailed and lengthy decision that goes a long way to helping

* Gibbons, Zubulake Revisited: Pension Committee of the University of Montreal

Pension Plan v. Banc of America Securities, LLC: http://www.gibbonslaw.com/
news_publications/articles.php?action=display_publication&publication_id=2983.
Retrieved April 6, 2011.
 W h at Is It ? 33

describe what actually amounts to negligence, gross negligence, and

willful, bad faith actions when it comes to e-discovery issues. She
discusses how these different levels of culpability for spoliation of evi-
dence should be used to decide the levels of sanctions and describes
the different remedies that can be used to punish the party responsible
for the spoliation of evidence.
She particularly chastises the plaintiffs in this case for their failure
to issue a written litigation hold in a timely manner. She writes that
this can be construed as gross negligence, depending on when they
should have known there would be litigation. And of course because
in this case the plaintiff is the party that brought the suit, they should
be expected to have known well ahead of the actual filing of the claim
that there would be litigation. Therefore, their failure to issue and
maintain a written litigation hold that resulted in the loss of relevant
evidence is especially egregious.
She discusses the different types of conduct that can result in
different levels of culpability for the spoliation of evidence, including
any place where a party fails its duties to preserve, acquire, review,
or produce relevant evidence. Depending on the circumstances, the
culpability might be considered gross negligence as in the case of the
plaintiff not issuing a written litigation hold, or the failure to collect
relevant data from the key players in a case. However, she said that
not gathering records from every employee in an organization, while
it might miss relevant data, would probably only be considered neg-
ligent. She did not try to define an exhaustive list of what might be
considered culpable behavior because she noted that each case will be
different and it will be up to the courts to weigh the differing factors
and make decisions appropriate to the facts of the case.
In this case, she found that several of the plaintiffs had been grossly
negligent, resulting in the spoliation of relevant evidence, and issued
an adverse inference to the jury regarding those specific plaintiffs,
telling the jury that it “may, if it chooses, presume that the lost evi-
dence would have been favorable to the Citco Defendants,” and if they
decided to make those presumptions and “the plaintiffs-spoliators do
not adequately rebut them,”* they may infer that the evidence would
have been favorable to the defendants.

* 2010 U.S. Dist. LEXIS 4546 at pg 105–08. Retrieved March 9, 2012.

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Costume and Turning sharply from the useful to

Ornament the ornamental—from the kitchen to
the boudoir—the woman who uses the
Britannica will find in it not merely the interesting information to
which clues are given in the chapter for the jeweller and in the
section on embroidery (Ch. 66) but many other articles about
costume and dress, with illustrations which make the text far clearer
and more valuable. With the constant turns of Fashion’s wheel,
dress, and especially women’s dress, is always reverting to an earlier
style or to a more primitive and semi-barbaric style of the present
day—now Empire styles, Robespierre collars, close-fitting gowns of
the pseudo-Greek style of the Napoleonic era, and now a quasi-folk
style, Bulgarian, or Oriental, and again a hint of the ecclesiastical
surplice, dalmatic, stole, or collar. The result is that the study of the
styles of the past, especially when properly illustrated, may be not
only interesting but actually valuable to a woman planning a new
gown or a “novel” ornament for head or throat.
The article Costume (Vol. 7, p. 224), equivalent in length to 80
pages of this Guide, is written by T. A. Joyce of the Department of
Ethnography, British Museum; by Stanley Arthur Cook, editor for
the Palestine Exploration Fund, on Egyptian and Semitic costume;
by Henry Stuart Jones, late director of the British School at Rome,
on Aegean, Greek and Roman costume; by Oswald Barron, late
editor of the Ancestor, on medieval and modern costume; and by W.
Alison Phillips, author of Modern Europe, etc. Its 51 illustrations are
chosen with great care from original sources, tombs, wall-paintings,
seals, statues and statuettes, brasses, and portraits of many periods,
and they are supplemented by illustrations in other articles:—
Aegean Civilization (Vol. 1, p. 245), see Plate III, Fig. 7 and Plate
IV, Fig. 7, for multiple or flounced skirts and basques—like those of
the early ’80’s—with short overskirt scalloped high on either side;
Greek Art, Figs. 2, 3, 21, 40, 42, 75; Terracotta (Vol. 26, p. 653),
see both plates and especially Fig. 4 of Tanagra and other figurines;
Roman Art (Vol. 23, p. 474), see Figs. 11, 12, 16, 24, 28; Brasses,
Monumental (Vol. 4, p. 434), see all illustrations; Illuminated
Manuscripts (Vol. 14, p. 312), see Plates III and V; Painting (Vol.
20, p. 459), see Figs. 7, 10, 11, 14, 25, 27; Lace (Vol. 16, p. 37), see
Figs. 4, 6, 8, 9, 10, 11, 12, 13, 15, 18, 33; Miniatures (Vol. 18, p. 523),
see both plates. One of the most interesting sources for the text of the
article Costume is in the writings of satirists, who from period to
period have praised the simplicity and frugality of the preceding
generation and bewailed the extravagance in style and material of
dress during the satirists’ own day.
Besides this general article on costume there is special treatment
of Chinese costume in the article China (Vol. 6, p. 173) and a section
on costume in the article India (Vol. 14, p. 417), equivalent to 18
pages of this Guide, written by Col. Charles Grant, formerly inspector
of military education in India, illustrated with 16 pen-and-ink
drawings by J. Lockwood Kipling, who is best-known to most people
as the father of Rudyard Kipling, and the illustrator of Kim, his son’s
story of native life in India. On Celtic dress see the article Clan (Vol.
6, p. 421); on that of the Hittites the article Hittites (Vol. 13, p. 537);
on modern Egyptian the article Egypt (Vol. 9, p. 31), on Persian, the
article Persia (Vol. 21, p. 193), etc.
And see the following articles on costume and similar topics:

Aigrette
Aiguillette
Apron
Backscratcher
Baldric
Bandana, or Bandanna
Beard
Beaver
Blouse
Bonnet
Braid
Burnous
Buskin
Caftan
Chape
Chatelaine
Costume
Cravat
Crinoline
Cuff
Cummerbund
Depilatory
Dolman
Doublet
Dress
Farthingale
Frock
Gaberdine
Girdle
Glove
Golosh, or Galosh
Gown
Haik
Hat
Hood
Hose
Jerkin
Kaross
Kilt
Kohl
Mantle
Mitten
Moccasin
Moustache
Muff
Parasol
Patten
Pelisse
Peruke
Petticoat
Plaid
Pomade
Pomander
Poncho
Puttee
Queue
Razor
Robes
Sandal
Scarf
Shampoo
Shirt
Sleeve
Snowshoes
Sombrero
Sporran
Stockings
Tabard
Tarbush
Toilet
Towel
Trousers
Tunic
Turban
Veil
Whisker
Wig
Biographical A study of the lives of great women
Study will interest any one, and if this study
is pursued by means of the Britannica
the reader will have the double advantage of getting full and
authoritative material presented in the most attractive and excellent
style. From the lists that follow of articles on women in the
Britannica, interesting groups may easily be chosen, such as:
Famous American Women:—Anne Hutchinson, Alice and
Phoebe Cary, Margaret O’Neill Eaton, Margaret Fuller, the
Grimké sisters, Harriet Beecher Stowe.
Women of Ancient Times:—Acca Larentia, Lucretia, Agrippina,
Artemisia, Aspasia, Cleopatra, Cornelia, Faustina, Messallina,
Virginia, Erinna, Corinna, Sappho, Hypatia, Zenobia.
Heroines of Fiction in History: compare Kingsley’s Hypatia with
the real woman, Ware’s Zenobia with the queen as she is represented
by a historian in the Britannica; the women of Dumas and of Scott in
their historical novels and their originals as seen in the Britannica,
for instance Mary Queen of Scots as portrayed by Sir Walter in The
Abbot and by Swinburne in the Britannica, Elizabeth and Amy
Robsart in Kenilworth and in the Britannica, Catherine de’ Medici in
Chicot the Jester and in fact; or the women of Shakespeare’s
historical plays as compared with their true place in history.
Women in American political reform:—Amelia B. Bloomer,
Susan B. Anthony, Elizabeth Cady Stanton, Lucretia Mott and
Lucy Blackwell Stone.

The following is a partial list of articles in the Britannica dealing

with Women, who may, for convenience, be booked under the broad
head of History as distinct from Literature, the Arts and Science:—

Acca Larentia
Accoramboni, Vittoria
Acland, Lady Harriett
Adelaide
Agnes of Meran
Agreda, Abbess of
Agrippina
d’Aiguillon, Duchesse
Albany, Louise, countess of
Alice, Princess
Amalasuntha
Anna Amalia of Saxe-Weimar
Anna Leopoldovna
Anne of Brittany
Anne of Cleves
Anne of Denmark
Anne of England
Anne of France
Anne (of Russia)
Arria
Arsinoë
Artemisia
Aspasia
Barton, Elizabeth
Berenice
Blanche of Castile
Boadicea
Boleyn, Anne
Borgia, Lucrezia
Brunhilda
Cappello, Bianca
Caroline, Amelia Augusta
Caroline of England
Castro, Inez de
Catherine of Aragon
Catherine of Braganza
Catherine de’ Medici
Catherine I and II (Russia)
Catherine of Valois
Châteauneuf, La Belle
Christina, Maria
Christina of Sweden
Clarke, Mary Anne
Cleveland, Duchess of
Cleopatra
Clotilda, St.
Colonna, Vittoria
Corday, Charlotte
Cornelia
Cornaro, Caterina
Diane de France
Diane de Poitiers
Du Barry
Eaton, Margaret O’Neill
Eleanor of Aquitaine
Elizabeth of Austria
Elizabeth (Carmen Sylva)
Elizabeth, Electress Palatine
Elizabeth of England
Elizabeth (princess)
Elizabeth of France
Elizabeth Petrovna
Este, Beatrice d’
Estrées, Gabrielle d’
Etampes, Duchesse d’
Eudocia
Eudoxia
Eugénie
Euphrosyne
Elizabeth Farnese
Faustina
Feuchères, Baronne de
Fredegond
Gilbert, M. D. E. R. (“Lola Montez”)
Godiva
Gontaut, Duchesse de
Grey, Lady Jane
Hachette, Jeanne
Henrietta Maria of England
Howard, Catherine
Ida of Bernicia
Irene
Isabella of Bavaria
Isabella of Castile
Isabella of Hainaut
Isabella II of Spain
Jacoba
Joan of Arc
Joan (Pope)
Joanna the Mad
Joanna of Naples
Josephine
Junot, Laure
Kingston, Elizabeth, Duchess of
La Fayette, Louise de
Lamballe, Princesse de
La Sablière, Marguerite de
La Vallière, Louise de
Lenclos, Ninon de
Lennox, Countess of
Lisle, Alice
Livia Drusilla
Longueville, Duchesse de
Louise of Prussia
Louise of Savoy
Lucretia
Macdonald, Flora
Maintenon, Mme. de
Maine, Duchesse du
Mailly, Comtesse de
Margaret of Austria
Margaret of Denmark
Margaret Maultasch
Margaret (Maid of Norway)
Margaret of Scotland, St.
Margaret of Scotland
Maria Stella
Marie Antoinette
Marie Leszczynska
Marie Louise
Marie de’ Medici
Marie Amelie Thérèse
Marie Thérèse
Matilda of Tuscany
Mary of Burgundy
Mary I and II of England
Mary of Lorraine
Mary of Modena
Mary of Orange
Mary, Queen of Scots
Masham, Lady
Matilda
Messallina
Mignot, Claudine
Marquise de Montespan
Marquise de Montesson
Montpensier, Duchesse de
Octavia
Olga
Orkney, Countess of
Orleans, Henrietta of
Parr, Catherine
Perrers, Alice
Philippa of Hainaut
Phryne
Pompadour, Marquise de
Portsmouth, Duchess of
Prie, Marquise de
Radegunda, St.
Rich, Penelope
Robsart, Amy
Rosamond (“The Fair”)
Rothelin, Marquise de
Roxana
Semiramis
Serres, Olivia
Sforza, Caterina
Shore, Jane
Snell, Hannah
Sophia Aleksyeevna
Sophia of Hanover
Sophia Dorothea of Hanover
Sorel, Agnes
Stanhope, Lady Hester
Stuart, Arabella
Swynford, Catherine
Talbot, Mary Anne
Tanaquil
Tarpeia
Theodora
Theophano
Ursins, Princess des
Victoria
Virginia
Walter, Lucy
Wilhelmina
Zenobia

Quite as long and much more impressive is the list of women who
have produced literature—excluding the heroines of mythology and
literature—on whom there are separate articles in the Encyclopaedia
Britannica.

Ackermann, Louise
Adam, Juliette
Agoult, Comtesse d’
Aguilar, Grace
Aisse, Mlle.
Alcott, Louisa May
Anna Commena
Arnim, Elisabeth von
Aulnoy, Baronne d’
Austen, Jane
Austin, Sarah
Baillie, Lady Grizel
Baillie, Joanna
Bartauld, Lady Anne
Barnard, Anna Letitia
Bashkirtseff, Maria
Behn, Aphra
Bekker, Elizabeth
Bernauer, Agnes
Berners, Juliana
Blamire, Susanna
Blessington, Marguerite, Countess of
Blind, Mathilde
Bosboom-Toussaint, Anna
Braddon, Mary Elizabeth
Bremer, Frederika
Brontë, Charlotte and Emily
Brooke, Frances
Browning, Elizabeth Barrett
Brunton, Mary
Burnett, Frances E. Hodgson
Carter, Elizabeth
Cary, Alice and Phoebe
Cenci, Beatrice
Centlivre, Susanna
Charrière, Agnes de
Child, Lydia Maria
Cockburn, Alicia
Coleridge, Sara
Colet, Louise
Cook, Eliza
Cooke, Rose Terry
Corelli, Marie
Corinna
Cork, Mary, countess of
Cottin, Marie
Cowley, Hannah
Craddock, Charles Egbert
Craigie, Pearl (“John Oliver Hobbes”)
Craik, Dinah Maria
Craven, Pauline
D’Arblay, Frances
Dashkov, Catherina
Deffand, Marquise du
Delany, Mary Granville
Dickinson, Anna Elizabeth
Droste-Hülshoff, Freiin von
Duff-Gordon, Lucie
Edgeworth, Maria
Edgren-Leffler, Anne Charlotte
Edwards, Amelia Ann Blandford
Eliot, George
Engelbrechtsdatter, Dorthe
Épinay, Louise d’
Erinna
Ewing, Juliana
Ferrier, Susan E.
Flygare-Carlén, Emilie
Foote, Mary Hallock
Fuller, Margaret
Fullerton, Lady
Gaskell, Elizabeth Cleghorn
Gay, Marie F. S.
Genlis, Comtesse de
Girardin, Delphine de
Godwin, Mary Wollstonecraft
Gore, Catherine G. F.
Gyllembourg-Ehrensvärd, Baroness
Gyp
Hahn-Hahn, Ida von
Havergal, Frances Ridley
Hamilton, Elizabeth
Haywood, Eliza
Hemans, Felicia Dorothea
Houdetot, Comtesse de
Howe, Julia Ward
Hrosvitha
Hypatia
Inchbald, Elizabeth
Ingelow, Jean
Jackson, Helen Maria (“H. H.”)
Jameson, Anna Brownell
Jewett, Sarah Orne
Kavanagh, Julia
Krüdener, Baroness von
Lamb, Mary
Lazarus, Emma
Lee, Sophia
Levy, Amy
Lewald, Fanny
Lyall, Edna
Malet, Lucas
Marguerite de Valois
Marie de France
Markham, Mrs.
Martineau, Harriet
Meynell, Alice C.
Mitford, Mary Russell
Molesworth, Mary Louise
Monk, Maria
Montagu, Elizabeth R.
Montagu, Mary Wortley
More, Hannah
Morgan, Lady Sydney
Moulton, Louise Chandler
Mundt, Klara (Luise Mühlbach)
Naden, Constance
Nairne, Baroness
Negri, Ada
Norton, Caroline E. O.
Oliphant, Margaret
Opie, Amelia
Orzeszko, Eliza
Ouida
Pardoe, Julia
Pardo-Bazan, Emilia
Philips, Katharine
Piozzi, Hester Lynch
Pisan, Christine de
Ploennies, Luise von
Porter, Jane
Praxilla
Radcliffe, Ann
Reeve, Clara
Rossetti, Christine
Sablé, Marquise de
Sand, George
Sappho
Schelling, Karoline
Schreiber, Charlotte Elizabeth
Scudéry, Madeleine de
Serao, Matilda
Sévigné, Marquise de
Seward, Anna
Sherwood, Mary Martha
Sigourney, Lydia H.
Smith, Charlotte
Southworth, Emma
Staal, Baronne de
Stael, Mme. de
Steele, Flora Annie
Stein, Charlotte von
Stowe, Harriet Beecher
Strickland, Agnes
Tautphoeus, Baroness von
Taylor, Ann and Jane
Thaxter, Celia
Tighe, Mary
Tucker, Charlotte Maria
Ward, Elizabeth Stuart Phelps
Ward, Mrs. Humphry
Wardlaw, Lady
Wiggin, Kate Douglas
Wilkins, Mary E.
Winchelsea, Countess of
Wood, Mrs. Henry
Wordsworth, Dorothy
Yonge, Charlotte Mary

Although women have appeared on the stage only in the last two
centuries the list of actresses and singers on whom there are articles
in the Britannica is a long one. A partial list in alphabetical order
follows:

Abbott, Emma
Abington, Frances
Albani, Mme.
Albert, Mme.
Alboni, Marietta
Anderson, Mary
Ashwell, Lena
Bartet, Jeanne Julia
Bernhardt, Sarah
Birch-Pfeiffer, Charlotte
Bracegirdle, Anne
Campbell, Beatrice Stella
Calvé, Emma
Cary, Anna Louise
Celeste, Mme.
Chaminade, Cécile
Clairon, La
Clive, Catherine
Coghlan, Rose
Cushman, Charlotte
Després, Suzanne
Drew, Louisa Lane
Dumesnil, Marie
Duse, Eleanora
Elssler, Fanny
Farren, Elizabeth
Faucit, Helena
Félix, Lia
Fenton, Lavinia
Fiske, Minnie Maddern
Gilbert, Ann
Grisi, Giulia
Guilbert, Yvette
Guimard, Marie Madeleine
Gwyn, Nell
Hading, Jane
Horton, Christiana
Jordan, Dorothea
Keeley, Mary Anne
Kellogg, Clara Louise
Keene, Laura
Klafsky, Katharina
Lacy, Harriette Deborah
Langtry, Lillie
Lecouvreur, Adrienne
Lind, Jenny
Mara, Gertrude E.
Marlowe, Julia
Mars, Mlle.
Melba
Menken, Adah Isaacs
Modjeska, Helena
Morris, Clara
Neilson, Adelaide
Nethersole, Olga
Nisbett, Louisa C.
Nordica, Lilian
Oldfield, Anne
O’Neill, Eliza
Patey, Janet Monach
Philips, Adelaide
Pope, Jane
Porter, Mary
Raabe, Hedwig
Rachel
Raucourt, Mlle.
Rehan, Ada
Réjane, Gabrielle
Ristori, Adelaide
Robinson, Mary
Sacher, Rosa
Sainton-Dobly, C. H.
Schröder, Sophie
Schröder-Devrient, Wilhelmine
Seebach, Marie
Siddons, Sarah
Smithson, Henrietta C.
Sterling, Antoinette
Sterling, Fanny
Taglioni
Tempest, Marie
Terry, Ellen
Tietjens, Thérèse
Verbruggen, Susanna
Vestris, Lucia Elizabeth
Vincent, Mary Ann
Vokes, Rosina
Woffington, Peg
Yates, Mary Ann

Both in Great Britain and in the United States the great social
reform movements of the last century numbered among their most
able advocates brilliant and devoted women. This is true of
temperance, abolition of slavery, prison reform, the treatment of the
insane and defectives, and nearly every branch which this Guide has
enumerated, especially in Part 4, where there is a general outline of
these reforms. For the part played by women see the biographies of
the women just mentioned and, among many others, Jane Addams,
Clara Barton, Baroness Burdett-Coutts, Dorothea Lynde Dix,
Emily Faithful, Elizabeth Fry, Octavia and Miranda Hill, Mary
A. Livermore and Lucretia Mott. More particularly the following
list of names of women connected with educational progress will
supplement what has been said in the chapter of this Guide For
Teachers and in the part of the Guide dealing with advances in
education and educational problems in the chapter Questions of the
Day:

Astell, Mary
Beale, Dorothea
Bodichon, Barbara L. S.
Brace, Julia
Bridgman, Laura
Bass, Frances Mary
Carpenter, Mary
Clough, Anne Jemima
Crandall, Prudence
Keller, Helen
Lyon, Mary
Shirreff, Emily
Swanwick, Anna

And see also the articles Co-education and articles on different

colleges for women, e.g., Mount Holyoke, Vassar, Bryn Mawr,
Smith, etc. One who wishes to realize the extent of feminine talent or
genius should read the lives in the Britannica of the sculptor
Harriet Hosmer and of women painters including Cecilia Beaux,
Rosa Bonheur, Artemisia Gentileschi, Kate Greenway, Angelica
Kauffmann, Teresa Schwartze and Mme. Vigée-Lebrun. But the
reader who is eager rather to know whether woman’s intellectual
powers—not her talent and her genius—compare favourably with
those of the male, will find material in the biographical sketches of
the physicist Mme. Curie; the geologist Mary Anning; the travelers
Isabella Bird Bishop and Alexandrina Tinné; the biologists
Marianne North and Eleanor Ormerod; the American ethnologist
Alice C. Fletcher; and above all—since mathematics has always
been considered above the capacity of women—the mathematicians
Maria Gaetana Agnesi and Sophie Kovalevsky and the
astronomers Agnes Mary Clerke, Maria Cunitz, Caroline
Herschel, Maria Mitchell and Mary Somerville.
It is pertinent to add that the present 11th edition of the Britannica
indicates the advance of women not only by embodying their
collaboration to an unprecedented extent and devoting an
unprecedented amount of its space to biographies of women, but by
the circumstance that it has, to a far larger extent than any previous
edition, been purchased by women.
 Part VI
Readings In Connection With Recreation
and Vacations
 CHAPTER LXVI
RECREATION AND VACATION

“Laying out your work” is a familiar phrase, and describes a common

practice. But hardly one man in a hundred deliberately “lays out” his
play, planning his recreation so as to get the best value out of every
hour of his leisure time. Yet when he consults a doctor because his
work is not running smoothly, one of the first questions he has to
answer is about the amount and form of recreation he takes.
Recreative An important branch of the art of
Reading about playing is to learn the value of reading
Recreation about play. The more a man knows
about any form of amusement, the
more he will enjoy the hours he devotes to it, and the better he will
succeed in keeping his mind off his business during these hours. But
there is another and an even greater advantage in this kind of
reading: it will take your mind out-of-doors during hours of leisure
that you are compelled to spend in-doors. Everyone recognizes that
out-door recreations, involving some degree of bodily activity, are
the most wholesome for men whose work is sedentary, as is the case
with nearly every reader of this Guide, and the best forms of out-door
recreation are those in which the contrast with your work is
accentuated by the complete change of scene and of habits which
most men can only hope to get once a year, at vacation time.
Turn to the next best form of relaxation, the out-door amusements
that lie close at hand. Here, again, your opportunities are limited, for
all these pleasures require daylight, which, during a great part of the
year, ends before your work is done; and most of them require
weather conditions that you can only get at certain seasons. An hour
spent in reading and thinking about out-door amusements and
travel, and in making plans for such delights, even if the planning
must be for a future that seems far away, is therefore always
refreshing.
It is not the purpose of the present chapter to suggest a course of
reading, in the strict sense of the phrase, for it cannot be assumed
that everyone who would like to read about lawn-tennis would also
like to read about tarpon-fishing. But a general account of the
Britannica articles that afford information about recreation and
vacations will give the reader a choice among subjects in which he is
already interested and among others which may offer him new
possibilities.

MOTORING

In connection with motoring, the possessor of the Britannica will

not be surprised to find in it, as might be expected from its universal
comprehensiveness, much fuller technical information in regard to
the structure and operation of his engine, the fuel he employs, and
the friction and other resistances he must overcome, than in any of
the ordinary manuals on the subject. But it may not occur to him that
in planning either a long or a short tour, he can find in the volumes
information of other kinds that will give added interest and
significance to everything he sees. It is not only when he crosses the
Atlantic for his motoring trip that cities and villages and mountains
and rivers have stories to tell. In our own country, place-names
which may at first suggest nothing, are found, on reference to the
Britannica, to be associated with episodes of early exploration, of
Indian hostilities, of local agitation, of one or another war, with the
lives of famous men, the growth of industries and of commerce, the
first success in a new branch of farming, the early days of railroad
and canal construction, or the development of transportation by
river, lake or sea. And what is being done to-day, in these places, is
often quite as interesting, and quite as difficult to ascertain from any
source other than the Britannica. This use of the work as a guide-
book, or rather as doing a great deal that guide-books lamentably fail
to do, is discussed later in this chapter in connection with travel in
general as a form of recreation; but motoring gives especial
opportunities for observation enriched by knowledge.
 The value of the Britannica in connection with the planning of a
motoring trip may be illustrated by brief notes on some of the
articles you might read if you were about to make, for example, the
run from New York through the Berkshire Hills and on to the White
Mountains. The following information is all from the Britannica,
and from articles to which you would naturally turn in this
connection.
A Specimen Tour from New York to the White Mountains
Along the Leaving New York by Broadway, your first
point is Yonkers (Vol. 28, p. 922), where, as
Hudson
the Britannica tells you, stands “one of the best
examples of colonial architecture in America,” Philipse Manor Hall, now a
museum of Revolutionary relics. Frederick Philipse, owner in 1779 of the Hall
and of an estate extending for some distance along the bank of the Hudson, was
suspected of Toryism, and all his property was confiscated by act of legislature. A
mile and a half beyond Yonkers you get a magnificent view of the Hudson,
disclosing the Palisades, of lava rock (Vol. 13, p. 852) which, in cooling, formed
joints like those of the Giant’s Causeway in Ireland. The impressive breadth of
the Hudson and its navigability throughout the 151 miles to Troy,
notwithstanding that in all that distance it falls only five feet (a good many New
Yorkers would be amazed to be told that fact), is due to the low grade of the river
bed, permitting the tide to enter and to back up the water, so that this long
stretch of the river is really a fjord, not a stream. The article Fjord (Vol. 10, p.
452) tells you how such a rock basin or trough is formed by geological action.
The article Henry Hudson (Vol. 13, p. 849) tells you how the great navigator,
himself an Englishman, although employed by the Dutch East India Company in
1608 to find a westward route to China, sailed the little “Half Moon” as far up
the river as Albany before he was convinced that the Pacific did not lie ahead of
him.
The next point after Yonkers, Dobbs Ferry (Vol. 8, p. 349), was a strategic
centre of great importance during the Revolutionary War. “The American Army
under Washington encamped near Dobbs Ferry on the 4th of July, 1781, and
started thence for Yorktown in the following month,” and it was there that
Washington and Governor Clinton, in 1783, “met General Sir Guy Carleton to
negotiate for the evacuation by the British troops of the posts they still held in
the United States.”
Sleepy Hollow In Tarrytown, as the article under that title
(Vol. 26, p. 433) recounts, Washington Irving,
who made the legends of the Hudson immortal, built his home at “Sunnyside,”
and was buried in the old Sleepy Hollow Cemetery. The article Irving (Vol. 14, p.
856), by the late Dr. Richard Garnett, the famous literary critic, tells you all
about Irving’s life; and Professor Woodberry of Columbia, in his article on
American Literature (Vol. 1, p. 831), reminds you that, although Irving spent