Washington and Lee Law Review
Volume 41 Issue 4 Article 4
Fall 9-1-1984
Electronically Stored Evidence: Answers to Some Recurring
Questions Concerning Pretrial Discovery and Trial Usage
Richard Allan Horning
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Richard Allan Horning, Electronically Stored Evidence: Answers to Some Recurring Questions
Concerning Pretrial Discovery and Trial Usage, 41 Wash. & Lee L. Rev. 1335 (1984),
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, ELECTRONICALLY STORED EVIDENCE: ANSWERS
TO SOME RECURRING QUESTIONS CONCERNING
PRETRIAL DISCOVERY AND TRIAL USAGEt
RICHARD ALLAN HORNING*
The use of increasingly sophisticated and complex electronic data pro-
cessing systems for business information storage and management is
widespread. Computers, relying as they do on "invisible" electronic impulses
contained in compact storage devices such as tape drives, disk drives, and
"bubble memories," are rapidly overtaking filing cabinets as the chief
repositories for business statistics and vital business information. As long ago
as 1973 the Missouri Supreme Court observed that "[lt is common
knowledge, which a court need not ignore, that computerized record keeping
is rapidly becoming a normal procedure in the business world."I According to
a recent article in Business Week, sales of computer hardware in the United
States have risen from $12 billion in 1979 to an estimated $32 billion in 1984,
while sales of computer software packages have risen from $200 million to an
estimated $10 billionin the same period.' In this environment it is not surpris-
ing that electronically stored evidence might be involved in even garden-
variety business litigation.
Consider a hypothetical case involving ABA Distributors, a plumbing
products distributor, which asserts breach of contract claims against a sup-
plier named Round-The-Bend.3 ABA Distributors has annual gross sales of
all products of $150 million. ABA Distributors uses order entry computer ter-
minals at its four sales offices to process sales orders received at those branch
+ Copyright @ Richard Allan Horning. All rights reserved (except as otherwise provided
in the STATEMENT OF OWNERSHIP AND CIRCULATION).
* Member of the California Bar. B.A. 1966, University of California; J.D. 1969, Duke
University School of Law. The author wishes to thank Ms. Cathryn A. Christy, Christy & Assoc-
iates, Mill Valley, California, and J. Montgomery Kersten, Esq., Associate General Counsel,
Tandem Computers, Inc., Cupertino, California, for their helpful comments on an earlier draft of
this article.
I. See Union Elec. Co. v. Mansion House Center N. Redev. Co., 494 S.W.2d 309, 315
(Mo. Sup. Ct. 1973).
2. Software: The New Driving Force, Bus. WK., Feb. 27, 1984, at 74-75.
3. This hypothetical was developed for use in connection with a program presented at the
American Bar Association Litigation Section Fall meeting in Chicago, Illinois in November of
1982. The author of this article was one of the panelists on the program and participated in the
development of this hypothetical. The program outline and resource materials were published by
the American Bar Association Litigation Section. See The Discovery and Use of Computer Based
Evidence, (A. Silverman ed. 1982) (handout distributed at Fall 1982 ABA Litigation Section
meeting) [hereinafter cited as ABA COMPUTER EVIDENCE PROGRAM]. An audio tape of the pro-
gram presentation and panel discussion is available from the American Bar Association, Chicago,
Illinois.
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, 1336 WASHINGTON AND LEE LAW REVIEW [Vol. 41:1335
offices. 4 The remotely located terminals are linked telephonically via a
modem to ABA's mainframe computer housed at ABA's headquarters. The
order entry terminals print out an invoice furnished to ABA's customers
showing ABA's product number (which is coded to yeild the identity of
ABA's supplier), units sold, sales price, total purchase price, sales tax com-
putation, shipped to an billed to data, and other pertinent information. The
sales data input by the sales clerk into the remote terminal is electronically
stored in the terminal for subsequent transmission over the telephone lines to
ABA's mainframe. The back-up paper copies ("hard copies") of the sales in-
voices are filed away for temporary reference at the branch office and are
later sent to ABA's headquarters for audit use and permanent storage. The
electronically captured sales data transmitted to ABA's mainframe is stored
on hard disk (with daily tape back-up) until the end of the current accounting
period, at which point it is transferred to magnetic tape. The data stored on
hard disk and on magnetic tape is accessed and manipulated periodically by
ABA's computer staff to generate printouts containing periodic sales data,
product reordering information, budget versus actual comparisons, short
term profit projections, and similar business statistics. The sales data is also
integrated into ABA's financial reporting system.
ABA's supplier, Round-The-Bend, allegedly breached its distributorship
agreement with ABA by appointing a second distributor in ABA's otherwise
exclusive area. Counsel for Round-The-Bend anticipates that at trial ABA
will attempt to prove its damages by offering first, a series of computer print-
outs, generated on a quarterly basis from 1975 to September 1982, to prove
ABA's historic sales of Round-The-Bend's product; second, a second set of
computer printouts containing projections of lost future sales of Round-The-
Bend products and the profits which would have been realized therefrom
through 1990, generated from ABA's historic sales data by a special regres-
sion analysis program developed by ABA's data processing manager, Ms.
Joyce Davenport; and third, testimony by the president of ABA, Mr. Hardly
Everwright, that the computer printouts generated by Ms. Davenport's
special program measure ABA's damages.
The ABA hypothetical presents a situation where pretrial discovery of
both the hard copy of ABA's sales records and the electronically stored sales
data is essential if Round-The-Bend's counsel is to challenge effectively the
admissibility and accuracy of the computer printouts. Counsel for Round-
The-Bend will also need access to ABA's sales information, profit and loss
data, budgets, sales projections, and ABA's computer programs (including
Ms. Davenport's special program) in order to prepare alternate damage
4. For a description of the workings of ABA's computer system and of the components of
computer hardware and software which make up ABA's computer system, see C. Christy, In-
troduction to a Business Computer System, in ABA COMPUTER EVIDENCE PROGRAM, supra note 3.
See generally Singer, ProposedChanges to the FederalRules of EvidenceasApplied to Computer-
GeneratedEvidence, 7 J. COMPUTER TECH. L. 157 (1979).
