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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
6000 Broken Sound Parkway NW, Suite 300
Boca Raton, FL 33487-2742

© 2016 by Taylor & Francis Group, LLC

CRC Press is an imprint of Taylor & Francis Group, an Informa business

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Version Date: 20160120

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Names: Matthews, David R., author.

Title: Electronically stored information : the complete guide to management,
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Matthews.
Description: Second edition. | Boca Raton : Taylor & Francis, 2016. |
Includes bibliographical references and index.
Identifiers: LCCN 2016002528 | ISBN 9781498739580 (hard cover : alk. paper)
Subjects: LCSH: Electronic discovery (Law)--United States. | Electronic
records--Law and legislation--United States. | Electronic data
processing--United States. | Electronic data processing--Management.
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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
INDEX 293
Foreword

Matthews h as a pproached e- discoveryf rom af resh, n ew

perspective—one that is understandable to the layperson as well as the
technologist. Electronically S tored I nf ormation: The C omplete G uide t o
Management, U nderstanding, A cquisition, S torage, S earch, and R etrieval
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 t he b ook f rom t he first c hapter to t he l ast is c lear, simple, a nd
thorough—any attorney who desires to become a technically savvy advo-
cate f or 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 o ne a nd a ll. That i s n ot j ust a p leasantry, b ut m y w ay o f

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 l ive in a n ew world in w hich w e are surrounded i n an
ever-deepening f og o f d ata. The data d efine w ho w e a re, f or b etter
or w orse. The data c ontain i nf ormation ab out o ur l ivelihoods, o ur
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 a re stored, or how to retrieve or destroy d ata (if t hat is i ndeed
at a ll p ossible!). This b ook i s f or a ll o f y ou, w hatever y our n eed o r
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 r eference and simply go t o the chapters you
are interested in, or read through if you like. I try to keep it entertain-
ing a nd s imple t o u nderstand, e ven w hen w e g et i nto s ome p retty
esoteric e ngineering c oncepts. I a m p retty s ure n o o ne i s p lanning
to earn h is 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 r ead on w ithout t repidation, d ear r eader. I p romise it w ill b e
enlightening, a nd p erhaps e ven f un. I f n othing e lse, y ou w ill h ave
some interesting new ways to entertain your geek f riends 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 a re too many to name them a ll, 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 e specially t hank m y c olleague a nd m entor, M ichael H amilton,
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 f orget 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 a lso l ike to acknowledge my good f riend, colleague, and
mentor, S teven H ailey, w hose g racious g enerosity, i ncredibly d eep
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 M atthews h as w orked in t he i nf ormation t echnology (IT)

field s ince 1 992. H e b egan w orking f or t he C ity o f S eattle a s t he
technology manager f or t he L egislative D epartment (City C ouncil)
in 1998. In early 2005, he was selected to be the first Deputy CISO
f or t he c ity. I n h is w ork f or t he c ity, h e d eveloped a nd c reated a n
incident response plan that is compliant w ith the National Incident
Management S ystem ( NIMS)/Incident C ommand S ystem ( ICS);
updated and extensively rewrote the city’s information security policy;
and created and taught training courses on information security and
forensics. He c reated a n I T primer f or t he c ity’s l aw department a s
part of his collaboration with them on e-discovery issues.
In 2 012, h e w as r ecruited b y E xpedia, I nc. t o d evelop a nd l ead
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 r etired i n 2 014 a nd i s n ow d oing c onsultant w ork m ostly w ith
local governments a nd critical inf rastructure to enhance t heir c yber
response and resiliency capabilities.
He is a participant and leader in regional information security orga-
nizations. H e w as t he p ublic-sector c o-chair o f t he U .S. C omputer
Emergency R eadiness Team ( US-CERT)/Department of Homeland
Security ( DHS) s ponsored N orth West A lliance f or C yber S ecurity

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 i s a n o rganization w ith pa rticipants f rom t he p ublic, p rivate,
academic, l aw-enf orcement, m ilitary, a nd n on-profit s ectors w ith
the mission to develop information and resource sharing capabilities
to b etter p rotect e veryone. That o rganization h as b een w ritten i nto
a n ew Cyber A nnex t o t he S tate o f Washington’s C omprehensive
Emergency M anagement P lan a nd i s w orking t o d evelop r esource
typing t hat w ill a llow s tate e mergency m anagement t o c all u pon
public and private resources during a cyber emergency.
Matthews is also an active participant in many local, national, and
international i nf ormation s ecurity, f orensics, a nd e- discovery o rga-
nizations. He is t he f ormer c hair a nd still a n active member of t he
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 S ecurity A ssociation ( ISSA) j ournal a nd h as p resented a t
many emergency management and information security conferences.
His most recent presentation on e-discovery, c alled “ New Issues I n
Electronic E vidence,” h as b een p resented t o r ecords m anagers a nd
information technology and security audiences in corporations such as
REI and Starbucks, was presented as a peer-to-peer session at RSA,
and w as g iven a s a c ontinuing l egal e ducation c ourse f or t he U .S.
Attorney’s office in Seattle and the City of Seattle’s law department.
He h olds t he t itles o f C ertified I nf ormation S ystems S ecurity
Prof essional ( CISSP), C ertified I nf ormation S ecurity M anager
(CISM), D igital R ecovery Forensics Sp ecialist ( DRFS), a nd C yber
Security Forensic Analyst (CSFA).
Matthews i s a n ative o f t he S eattle a rea w hose i nterests s pread
much f urther t han I T o r e ven i nf ormation s ecurity. H e i s a n a vid
reader, w riter, h iker, b iker, g ardener, a nd a b lack b elt i n S hitoryu
karate. He and his wife live with their three children north of Seattle.
 1
W HAT I S E LeCTRONiC
I NFO RMATi O N , 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 t he term electroni-
cally s tored i nf ormation (ESI). B ecause t hat i s a t erm m ost o f ten
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 a re changing the
legal landscape.
Finally, w e’ll s pend s ome t ime l ooking a t h ow t his f og o f d ata
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 t he most l ikely reasons you m ight be interested in ESI is i f

you are i nvolved i n a c ivil l awsuit. O f c ourse, i f y ou a re a n a ttor-
ney o r pa ralegal, t hat i s p erhaps m ore l ikely t han i f y ou a re j ust
Mr. or M s. John Q. C itizen. B ut a s a b usiness o wner o r m anager,
the chances a re a ctually p retty l ikely that you or your organization
might b e i nvolved i n s ome t ype of l egal a ction ( Figure 1.1). I n my
former c areers i n b oth t he public a nd private s ectors, t he organiza-
tions I worked w ith of ten dealt w ith 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 c hapter s pecifically d iscusses t he F ederal Rules o f C ivil
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 a lso s pend s ome t ime l ooking a t r ules o f e vidence, b ecause
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 b egin w ith a r un-through o f t he s pecific r ules t hat w ere
amended i n D ecember 2 006 a s w ell a s s ome of t he more p ertinent
and i nteresting c hanges a nd c larifications t hat a re 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, M ichele ( October 7, 2 014). P art I II—FRCP a mendments: The l ong a nd

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 t he first t ime, i n 2 006, t hese r ules o utlined a s pecific

responsibility o f o rganizations t o i dentif y e lectronically s tored d ata
that might be relevant in a c ase and specify if the organization f eels
it i s r easonably a ccessible. O rganizations a re a lso e xpected to iden-
tify data that might be relevant but that they consider not reasonably
accessible. These a re i mportant c onsiderations, a nd w e s pend m ore
time talking about this concept later.
First, t hough, h ere i s a q uick b reakdown o f t he r ules t hat w ere
changed or a re being revised. We f ollow each of t hese w ith a m ore
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 s ignificant. I n t he n ew r ule, t he l anguage h as b een c hanged
to e mphasize h ow i mportant i t i s f or t he pa rties t o c ooperate.
Specifically i t s ays “ These r ules … s hould b e c onstrued, a dminis-
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 t he most e ven playing field, at t he least e xpense a nd burden
possible.

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

The changes to Rule 16(b) in 2 006 were designed to g ive t he court
a w ay to d efine r ules ab out d isclosure, p rivilege, a nd t he w ays t hat
discovery of electronic evidence will be conducted. For instance, what
kinds of electronic data will be considered work product (discussions
between a ttorneys a nd t heir c lients, o r w ork t hat c ounsel i s d oing

* Cornell University Law School, Legal Information Institute, Federal Rules of Civil
Procedure ( as a mended t o D ecember 1 , 2 010): h ttp://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 a nd c onfer c onferences, w here b oth s ides g et
together and discuss what electronic evidence they expect to acquire
and preserve f or 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 t he c ase at hand. We look at some c ase l aw l ater where t he
agreements t hat were made in t hese 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 o f c ooperation. I t s tates t hat t he s cheduling o rder m ay
“direct t hat b ef ore m oving f or a n o rder r elating t o d iscovery t he
movant must request a c onference w ith t he court.” A s noted, t his
is to e ncourage t he pa rties to w ork t hings o ut i n a n e fficient a nd
cooperative way.
The second is again in Section (3)(B), but in (iv) a nd it relates to
claw-back. Claw-back rules are about when a pa rty 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 r eached u nder t hat r ule o f e vidence t o a lso b e c onsidered i n
whether produced evidence should be able to be “clawed” back.

1.2.1.3 Rule 26 General P rovisions G overning D iscovery; D uty 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 f act 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 t ypes o f e lectronic d ata s uch a s e- mail, d ocuments,
etc.—see Chapter 3 f or detailed descriptions of the t ypes 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 f ormats w ill b e e xpected f or p roduction o f t he d ata
(e.g., w ill t he pa rties p roduce t he d ata w ith o r w ithout
metadata?—see C hapter 3 f or m ore on m etadata—and w ill
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 r ulings 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 o rder f or a ttorneys t o f ollow t he p rescripts o f Ru le 26, t hey
now have a stated duty to understand their client’s information tech-
nology (IT) s ystems and their policies and procedures f or records
retention.
This will require those of you who own or manage a c ompany, 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
f or a ny e lectronic e vidence t hat i s r elevant t o t he c ase, s o w orking
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 d ata w ill b e a ccessed, a cquired, a nd p reserved i n a f orensically
sound m anner (to p reserve t he i ntegrity a nd n onrepudiation o f t he
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 i nformation you should use a s you e xplore a nd d iscuss w ith 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 f act, in many cases, t he people who should
have k nown ab out e- discovery i ssues w ere f ound t o b e pa inf ully
unaware of the issues. This serves to f urther 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, t he term “reasonably a ccessible” i s not s pecifically
defined in the rules. However, there is considerable case law that gives
some idea of what the courts are expecting.
Data t hat a re l ive, o nline o n s ervers, d esktops, l aptops, a nd s o
forth, at the time of expected litigation will be considered accessible
of c ourse. B ut a lso, d ata t hat a re w ell d ocumented a nd o rganized,

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

deloitte.com/view/en_US/us/Services/Financial-Advisory-Services/Forensic-Center/
26d4c52d2bdf 8210VgnVCM200000bb42f 00aRCRD.htm. R etrieved F ebruary 1 5,
2011.
 W H AT IS IT ? 7

such a s i ndexed b ackup t apes t hat c an b e r etrieved w ithout u ndue

burden to y our o rganization, h ave b een d eemed r easonably a ccessi-
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 a nd DVDs, USB sticks, or even e xternal, 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 b ecomes y our r esponsibility t o c onvince t he c ourt t hat t he d ata
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 i s a nother i mportant p oint t o u nderstand i n t his r espect,
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 i f n o o ne i n y our o rganization k nows t hose p olicies o r f ollows
them b ecause t hey a re too c omplex or t hey w ere never t rained, t he
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 i nstance, i f y ou h ave a p olicy t hat a ll e-mail i s d eleted a f ter

45 days, but your organization only “remembers” and f ollows that
policy a f ter y ou r eceive n otice o f l itigation ( thereby d eleting s ome
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 i n i mportant e lectronic e vidence b eing a b urden t o a ccess,
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, t his was a r elatively large organization w ith a l ot of d iffer-
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 t he looks on t heir f aces when t hey were shown a r ather

large room stacked with laptops with no labels, no indexing or orga-
nizing system, and not even a d ating procedure. They obviously had
their work cut out for them.
The reason t his o rganization c alled o n t hese c ontractors w as
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 c ase where the courts would come down on the side of
their o pposition i f t he d ata w ere c onsidered i mportant t o t he c ase.
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, p reserve, a nd p roduce t hat e lectronic e vidence. A nd t hat i s
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 f ollowing 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 c ase similar to this,
it can be to your benefit to have quality computer f orensic resources
either i n house or by contract. We d iscuss f orensics procedures a nd
capabilities later in the book. That may give you an advantage over
your o pponents b y virtue o f y our ab ility t o a ccess d ata t hat m ight
otherwise b e c onsidered i naccessible, s uch a s d eleted, c orrupted, o r
even encrypted data.
Another pa rt o f Ru le 26 (26(b)(5)) w as c hanged t o a ddress h ow
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 a nd 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 s pend m ore t ime d iscussing t he w ork p roduct d octrine a nd
attorney–client privilege l ater i n t his b ook (see Chapter 5), b ecause
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 v ery important part of evidence law that will be helpful f or

you to u nderstand a s y ou d eal w ith e- discovery i ssues. It i s a lso a n
evolving part of the law as courts learn to deal with the ramifications
of electronic evidence.
Finally, R ule 26(f ) r equires e veryone t o g et t ogether e arly o n t o
agree on the protocol for electronic discovery.
This is a n important d iscussion f or you a nd 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 a re most e asily available to you a nd most a dvantageous 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 t he protocols a nd a greements based on t hese r ules w ill be
adopted as a court order under the Rule 16 meet and confer, so under-
standing t heir r amifications a nd being well prepared c an be a h uge
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 t he i ssues a t s take i n t he a ction, t he a mount i n c ontroversy, t he
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 Ru le 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 c an e ncourage r esponsible a nd i nexpensive o ptions f or d iscovery
from all parties.
Finally, a s i n Ru le 16(b)(3)(B) ab ove, t he n ew a mendments i n
Rule 26(f)(3) include a reference to the Federal Rule of Evidence 502
as a nother reason t hat c an be i ncluded i n a n a greed-upon order f or
production as a r emedy f or the accidental p roduction of privileged
data. This would be included as part of the “Discovery Plan” that is
outlined in this rule.

1.2.1.4 Rule 3 7 S af e H arbor When y ou a re t hinking ab out w hat i s

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 f or) 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 d amaged s omewhere a long t he w ay, when you should h ave 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 t hink s poliation w as b est d escribed i n a c ase k nown a s Mosaid
Technologies, I nc. v . S amsung E lectronics C orporation f rom the New
Jersey District courts in 2004 as follows: Spoliation is “the destruction
or significant a lteration of evidence, or the f ailure to preserve prop-
erty for another’s use as evidence in pending or reasonably foreseeable
litigation.”*

* Applied Discovery, Online L aw Library, Ca se 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 t he c ourts f or p iling o n t his t ype o f a mbiguous l anguage t hat
gives a ttorneys a nd a ll o f u s p lenty o f o pportunities t o g uess w hat
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 g reat idea to consider a ll 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 a re not reasonably accessible, i f t he data a re relevant to a c ase,
you have a duty to preserve the data as long as it is possible to do so.
The only “get out o f jail f ree” card i n this d eck i s Ru le 37(f ) a s
amended in 2006 to include electronic evidence. This rule, of ten
called t he Safe Harbor r ule, says t hat you cannot be sanctioned f or
spoliation of evidence if you have destroyed that evidence as part of
your “routine, good faith” operations and policies.
But let m e i nsert a huge c aveat h ere—one y ou heard b efore a nd
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, d uring d eposition o f t heir I T s taff, i t i s r evealed t hat
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, t his i s n ot go ing t o fly w ith t he c ourts, a nd t he S af e
Harbor rule is going to fall flat on its face as an excuse. In fact, in case
Another random document with
no related content on Scribd:
to a single glance. Waterloo itself began at 11 o’clock in the morning,
and ended before 9 o’clock at night; it might have been fought under
the Factories Act.
Let there be set beside it the great siege-battle of the Aisne, which
began on September 15, 1914, and is going on still, with louder
thunders and vaster slaughter than ever. Its field has lengthened into
a ribbon of contorted trenches stretching from the North Sea to the
Alps, a distance of 500 miles, and from, or in, those strange, vast,
far-running ditches, now for nearly two years, some 3,000,000 men,
the best fighters in history, armed with an artillery which suggests
nothing so much as the weapons with which Milton equipped Satan
and his hosts in their war with the angels, have been slaying each
other. The deep thunder of the guns, the tumult of fighting men, have
never ceased to sound at one point or another along those five
hundred miles for nearly two years. Verdun, with all its passion and
slaughter, its six months’ wrestle of guns and infantry, is a mere
episode in this tremendous siege-battle; a score of Waterloos and
Marengos have been fought during its progress, and have scarcely
found a record.
The most brilliant chapter in British military history before the
present war was certainly Wellington’s campaigns in the Peninsula.
They lasted six years. The British forces under Wellington seldom
approached, and never exceeded, 50,000 men. Napier condenses
the story into a single sentence of stately and resonant prose. In that
great struggle the British forces ‘fought and won nineteen pitched
battles, made or sustained ten sieges, took four great fortresses;
killed, wounded, and took 200,000 enemies, etc.;’ and the cost of all
this is to be found in ‘the bones of 40,000 British soldiers’ which ‘lie
scattered on the plains and mountains of the Peninsula.’ But Sir
John French’s army in France lost in three weeks more than
Wellington’s armies in the Peninsula lost in six years! In a single
episode of the siege-battle beyond the Aisne Valley—say, the
second battle of Ypres, which lasted four days—the British employed
greater forces, and sustained greater losses, than in Wellington’s six
campaigns in the Peninsula.
 The most brilliant, desperate, and bloody siege of those
campaigns was that of Badajos, in 1812. No one who has read the
story Napier tells of how, on the night Badajos was stormed, the men
of the Light Division died on its dark breach, can ever forget the tale.
Now the siege of Badajos lasted twenty days; it cost Wellington 5000
men. The storming parties were let loose at 10 o’clock on the night of
April 6; when morning dawned Badajos was won. Compare this with
Verdun. The German attack began on February 23. Some 3000 guns
—amongst them the great howitzers that destroyed Namur—poured
for days and nights an unceasing tempest of high explosives on the
French lines. Then the assault was launched. For nearly six months
the thunder of the German guns has risen and sunk, but never
ceased; again and again, now on one point, now on another, the vast
grey waves of the German infantry have flung themselves in bloody
ebb and flow on the French position. What the German losses have
been can only be guessed; they must reach half a million men. And
still the tricolour flies over Verdun.
If we take the fighting on the sea, again, there is the same
tremendous increase of scale. Trafalgar is—or was, till May 31 of the
present year—the greatest sea-fight under the British flag, and it is
curious to set it in contrast with the fight in the North Sea. The
resemblances and differences of the two great battles are alike most
striking. That little, one-eyed, one-armed, weather-beaten, sun-
tanned figure, Nelson, is the dominating figure in Trafalgar; and he is
still the most famous of all who have led the fleets of Great Britain
into battle. But if we turn to the recent battle in the North Sea—a
battle so splendidly fought, and so ill-told—it is clear that, in
quickness of vision to read the iron alphabet of sea-battle, and in the
dash and fire with which he dared all risks to turn and hold his
enemy, Sir David Beatty is of Nelson’s school, and has ‘the Nelson
touch.’ Nelson himself, indeed, could hardly have done better on that
foggy afternoon in the North Sea than Sir David Beatty did. For
seamanship, for technical skill, and for pure valour, the North Sea
fight, in brief, will compare with Trafalgar. But in its general aspect, in
the scale of the forces engaged, and in the amount of destruction
achieved—and the terrifying speed of that destruction—the two
battles are utterly unlike each other. A comparison betwixt them
shows how completely the whole physiognomy of sea-battle is
changed. Beatty’s six battle-cruisers carried only 9-inch armour, but
they had the hitting-power of Dreadnoughts and the pace of
destroyers; and speed was the great feature of the North Sea fight.
The ships engaged under both flags were amongst the swiftest
afloat, and the battle was fought at full speed. At the critical moment
of the fight the ships of Beatty’s squadron were travelling at the rate
of thirty miles an hour, firing as they raced. They could head, and
turn, the line of German ships because they outpaced them. But if
the ships were swift, death was swifter. It was as they whirled around
across the head of the German line that the Queen Mary and the
Indefatigable, in turn, were destroyed, and destroyed in a space of
time to be reckoned in minutes—whether by the concentrated fire of
the big German Dreadnoughts, or by the misadventure of striking a
floating mine, is not clear.
It is exactly at the two points of furious speed and of destructive
energy that the contrast betwixt Trafalgar and the fight in the North
Sea is greatest. At Trafalgar, as everyone knows, the Franco-
Spanish fleet was drawn up, or had drifted, into a straggling crescent
four miles from tip to tip—thirty-three great line-of-battle ships, armed
with more than 3000 guns, a curving forest of masts and flags. The
British in two columns—Nelson in the Victory leading one column,
Collingwood in the Royal Sovereign the other—bore down on the
enemy, but there was no speed in the movement. They drifted, rather
than sailed, at the rate of less than two miles an hour—less than a
walking-pace, that is—into this curve of hostile guns; and the
coolness of the British crews and their officers was in keeping with
the deliberation with which their ships approached the enemy. The
Royal Sovereign was a quarter of a mile ahead of its column, and
was certain to receive the concentrated fire of the enemy’s line for
nearly half an hour without support, yet Collingwood was not only
nibbling but paring an apple on the quarter-deck while waiting for the
great game to begin.
Nelson’s three-deckers, compared with the modern Dreadnought
or battle-cruiser, were tiny ships. They had an average tonnage of a
little over 2000 tons—the Victory herself was of 2223 tons. Now, a
ship of the Queen Elizabeth class is of 27,000 tons, equal to the
tonnage of the whole column of Nelson’s ships at Trafalgar. The
Victory carried 101 guns, about one-third being 32-pounders; there
were only two carronades firing a shot of sixty-two pounds. If every
gun on the Victory had been fired in one sudden broadside, the
entire weight of metal would have been 2296 pounds, or a little over
one ton of iron, and the effective range would be less than half a
mile. But the Queen Elizabeth, with her 15-inch guns, could
discharge, in a single broadside, twenty-seven tons of steel, and
could strike her mark with that tempest of flying metal—a swarm of
aerolites—once every thirty seconds, a dozen miles away.
The number of men killed at Trafalgar, leaving out the wounded,
was only 449. On the Victory itself 57 were killed, on the ‘Fighting’
Téméraire 47, on the Royal Sovereign 47, on the Belle Isle 33, or a
total of 184 killed in the four leading ships. But the Cressy, the
Aboukir, and the Hogue were sunk in fifteen minutes—without
seeing the submarine that sank them—and 680 seamen were
drowned, a loss fifty per cent. greater than that of the whole of
Nelson’s fleet at Trafalgar. Sir David Beatty’s two battle-cruisers, the
Queen Mary and the Indefatigable, were sunk in a time as brief as
the three unfortunate cruisers, and sunk when travelling at their
highest speed, and firing as they raced. Each carried a complement
of 900 men, and when they went down the loss of life was four times
as great as that of Trafalgar.
A century hence what may be called the German psychology, as
revealed in this war, will still puzzle the curiosity and challenge the
imagination of unborn generations. For the first time in history we
have the spectacle of a nation of seventy million people, Christian in
faith, highly civilised, strong on the practical side, of shrewdest
business capacity, with a genius for business and for organisation, a
nation that has given to education, or what it thinks is education, a
larger place in its life than any other in history, yet which somehow is
smitten with a sort of insanity, an insanity partly moral and partly
intellectual. And what heightens the wonder is the circumstance that
it mistakes its very lunacy for culture. To make the tragedy complete,
it is an insanity organised, armed, disciplined, terrible, equipped with
all the resources of science, and having borrowed from science new
engines and subtleties of destruction without precedent in the history
of war.
In its essence what we are watching is the spiritual bankruptcy of a
great nation; but the whole story bristles with psychological
problems. Its spiritual landmarks have shifted. Good and evil are
terms in its politics which have not merely lost, but—a much more
terrible thing—have exchanged their significance. It mistakes might
for right. It labels its vices as virtues.
In one sense, Germany is rich in intellectual ability—the Germany
to which Beethoven sang, and Goethe discoursed philosophy, for
which Kant moralised, and at which Heine jested. It has a list of
names great in poetry, philosophy, and scholarship. Germany, too,
has done great things in science, though not so much in the realm of
scientific discovery. It adapts rather than discovers; it excels in
translating the scientific discoveries of other races into practical
terms. Noticeable, also, is the fact that the great names in German
literature, philosophy, and scholarship are not Prussian; and it is
Prussia, and the Prussianised form of Germany, which is troubling
the world. Luther came from Eisleben; Leibnitz was a Czech; Kant
was of Scottish blood; Bismarck, it is amusing to remember, told
Prince Napoleon, ‘I am not a German; I am a Prussian, a Wend’—
that is, a Slav. Both Nietzsche and Treitschke came of a Slav stock;
most of the great ‘German’ musicians came of a Jewish strain; Heine
was, of course, a pure Jew.
Nearly all the public documents issued by the German
Government during this war, and all the speeches of its statesmen,
are thick-inlaid with statements which, if not blank lies, and known by
the speaker or writer to be lies, are yet proofs of some disordered
quality in the mind of the speaker or writer. Sometimes the speaker
seems to be self-hypnotised, so that he really believes a lie as big as
a mountain to be the truth; or he suffers from some eccentric
paralysis of the memory which enables him to forget what he has
said, or written, only a moment before.
 The famous ‘scrap of paper’ incident, taken as a whole, has the
office of a searchlight as showing the morbid condition both of
German morals and of German intelligence. Anybody with a touch of
literary imagination will look back upon that scene in a room in
Berlin, when the German Chancellor complained to Sir Edward
Goschen, ‘You are going to war with us over a scrap of paper,’ and
recognise it as one of the most picturesque, as well as the great and
critical, moments in history. The German represented the greatest
military Power in the world, the Englishman the greatest naval
Power. Had both agreed to dismiss as a mere ‘scrap of paper’ the
treaty that guards the neutrality of Belgium, the sanctity of all treaties
would have disappeared at a breath.
But that dismissal into space as a mere scrap of paper of the
treaty guaranteeing the neutrality of Belgium, which bore the name
of Germany, was to Germany herself a worse disaster than the loss
of a pitched battle. It was a form of suicide. It destroyed her public
credit; it dismissed her from the realm of good faith. When, at the
end of the war, the representatives of the nations now in conflict sit
around some table in London or in Paris to draw up terms of peace,
the ghost of this scrap of paper will cost Germany much, for she has
stripped herself of all title to be trusted. Now, a blunder so
unspeakably stupid on the part of men so able shows that at that
moment, and in that act, the brains of the men who were the
representatives of Germany were in some curious state of paralysis.
But this gigantic blunder is to this day being pursued by Germany
with explanations and justifications which, as examples of unreason,
suggest nothing so much as the logic employed in ‘Alice in
Wonderland.’ The German Chancellor himself some time afterwards
asked the world to believe that what he meant was that ‘a scrap of
paper’ represented the British idea of the value of a treaty, while
Germany ‘took her responsibility towards neutral States seriously.’
And Bethmann-Hollweg offered this explanation after Germany had
actually violated Belgian neutrality, and Great Britain had gone to
war to maintain it!
The German Chancellor offered, in the very same speech, yet
another explanation in open quarrel with the explanation just given.
At the time he described the treaty as ‘a scrap of paper,’ he had
‘reason to believe,’ he told the Reichstag, that the Belgians
themselves had destroyed their own neutrality by a convention they
had made with England for the introduction of British troops; but as
he lacked formal proof of the circumstance, he did not mention it at
the time. Since then they had captured Brussels, and found, in the
archives there, the actual text of the convention with England, by
which Belgium violated its own neutrality. As a matter of fact, the
guilty document which the German Chancellor quoted was not a
‘convention’ at all, but notes of a ‘conversation’ betwixt the British
military attaché and Major-General Ducalme, a Belgian officer. It was
an academic discussion of what might be done ‘after Germany had
entered Belgian territory’; and it was endorsed as ‘not binding’ on
either of the two nations. And the German Chancellor quotes this
discussion of what might be done to guard its neutrality against
German attack as a surrender of its neutrality. This is very much as
though a burglar, caught in the act of plundering a house, claimed
that his burglary was justifiable, as he found—after he had broken
into the house—that its owner had a revolver under his pillow.
The doctrine of the freedom of the sea which Germany has
suddenly begun to preach at the top of its voice is yet another proof
of either the entire absence of any sense of humour in the German
mind, or of a morbid condition of the German conscience. For Great
Britain, the geographical distribution of her Empire makes an
overwhelming superiority in naval power a condition of its existence;
but the seas of the planet, under her supremacy, have been free to
every flag—except the black flag of the pirate. She has never
abused her sea-power. It is Germany that has made the sea terrible
by sowing it with drifting mines and making it a field for the
performances of its submarines. Great Britain has supreme power
on the sea, Germany has—or had—supreme military power on land;
and what Germany means by ‘the freedom of the sea’ is that Great
Britain’s advantage should be cancelled out of existence, while her
own advantage should remain undiminished.
It is worth quoting the words in which, in his clear-cut, sword-
edged prose, Mr. A. J. Balfour analyses and describes this new
German doctrine. ‘The most simple-minded,’ he says, ‘must feel
suspicious when they find that these missionaries of maritime
freedom are the very same persons who preach and who practise
upon the land the extremest doctrines of military absolutism.
‘She poses as a reformer of international law, though international
law has never bound her for an hour. She objects to “economic
pressure” when it is exercised by a fleet, though she sets no limit to
the brutal completeness with which economic pressure may be
imposed by an army. She sighs over the suffering which war
imposes upon peaceful commerce, though her own methods of
dealing with peaceful commerce would have wrung the conscience
of Captain Kidd. She denounces the maritime methods of the Allies,
though in her efforts to defeat them she is deterred neither by the
rules of war, the appeal of humanity, nor the rights of neutrals.’
Now, when a Power like Germany, with such a record on the sea,
attires itself in the garb of a missionary, and begins to preach the
gospel of ‘the freedom of the sea,’ the phenomenon appeals to the
literary imagination by its exquisite absurdity; to the alienist it
suggests the urgent need of medical treatment.
That the Power which has scorched with fire and splashed red
with blood the little State it had sworn to protect, which sank the
Lusitania and shot Nurse Cavell, should complain to high heaven
that Great Britain had broken the regulations of the Hague
Convention, is an audacity which paralyses the sane intelligence. It
is as though Jack the Ripper published a tract against vivisection, or
Deeming wrote a pious homily on ‘How to Make Home Happy.’
Another illustration of this lunatic quality in the German mind is
found in the furious complaints against Great Britain for starving—or
for even trying to starve—Germany, including its women and
children. And yet it was Germany that in 1870 drew lines of blockade
around Paris, and waited for starvation to bring the ‘gay city’ to
surrender! No German city yet has known the horrors of starvation
as the German armies compelled Paris to know them. The death-
rate of little children during those sad months rose to 5000 a week,
and Bismarck, when he rode into Paris after its surrender, expressed
his surprise at seeing any children yet alive. Von Hindenburg, when
told quite recently that Russian peasants were starving in Poland,
said ‘It is just as well that it should be so; we cannot make war
sentimentally.’ Then he repeated the formula which is the true credo
of every Prussian soldier: ‘The more ruthlessly war is waged, the
more humane does it really become; for that is the best way to bring
it to a rapid conclusion.’ But what more complete proof of the one-
sidedness of the German mind can be discovered than the fact, say,
that at the present moment it is itself starving Belgium, so that its
inhabitants have to be fed by the pity of the world, and at the same
time it is screaming aloud to the whole universe because the meat
ration in Berlin has to be reduced in consequence of the British
blockade? The puzzle is not so much that Germany acts with such
gaping inconsistency; it has not the faintest notion that it is
inconsistent. This is a mental condition rare outside, and not even
always found inside, a lunatic asylum.
The delirious self-complacency of the Prussianised German,
again, leaves the whole outside world speechless. There is no other
such instance of megalomania in history. No other people pay such
loud compliments to themselves, and pay them with such
unashamed diligence. They decorate themselves with compliments
as a savage decorates himself with bits of broken glass. A
philosopher like Hegel set the example of proclaiming in German
accents and to German ears the ‘godlike glory’ of the German
nation. The ‘spiritual nature of Germanism,’ we are assured seven
days a week by German editors, makes it the standard-bearer of
Christian Europe. Morality, we are warned, ‘depends on the
preservation of the Christian Germanic spirit and on the political
power of Germany. Civilisation and Christianity are unthinkable
without the Germans.’
‘Germany,’ says Professor Lamprecht, ‘is now the protector and
pillar of European civilisation; and after bloody victories the world will
be healed by being Germanised.’ ‘We Germans are singled out by
Providence to march at the head of all Kultur people.... We have the
highest mental creative gifts; we form the crown of Kultur in the
whole of creation.’ Can anyone doubt, after reading through pages
like this, that Germany is self-hypnotised? There must be some
morbid condition in the character which thus exudes compliments to
itself through every pore in its skin. It is the sign of a disordered
intelligence.
The doctrine of ‘frightfulness,’ as a method in war, is the special
contribution of Germany to the present conflict. It is curious,
however, to remember that the most terrible example of
‘frightfulness,’ as far as Europe is concerned, was supplied by
Germany 300 years ago in the famous, or rather infamous, Thirty
Years’ War; and a chapter from its grim pages reads like nothing so
much as a page from the German performances in Belgium in 1914-
15. The slaughter in Germany during that period was so huge that in
1648 the country had only a third of the population of 1618; in some
districts the depopulation was so great that every man was allowed
to have two wives! It is a German historian who says that ‘even now
the injury done to the psychology of the German people by the moral
and intellectual decay of the Thirty Years’ War has hardly been
repaired.’ Those words were written before the present war broke
out, but there are some pages in the performances of Germany to-
day that justify that statement.
What makes the folly of Germany to-day absolutely unique,
however, is the fact that, in its adoption of ‘frightfulness’ as a war
measure, it takes the performances of the Thirty Years’ War,
translates them into modern terms, practises them on a new scale,
and enjoins them as virtues! The German soldier is instructed, for
reasons of humanity, to be as inhuman as possible; and the German
War Book gives grim details of what can be done, and supports its
instructions by logic which, if it is dreadful, is certainly plausible. If
war is made more frightful, it is argued, it will be made shorter; so it
is a service to humanity to bombard defenceless towns, burn whole
villages, shoot unarmed citizens, including women and children. One
German divine, indeed—and German divines during this war have
done and said some wonderful things—preached a sermon to show
that ‘frightfulness’ carried to the nth was a form—a German form—of
fulfilling the commandment, ‘Thou shalt love thy neighbour as
thyself.’ ‘If you love your neighbour, you will do your best to prevent
him being caught in the red tide of war—or to get him out of it—as
early as possible; and you will achieve this best by making war as
terrible as you can.’
The committee which inquired into German atrocities in Belgium,
and is responsible for the Bryce Report, had on it such shrewd,
practical, hard-headed men as Lord Bryce, Sir Edward Clarke, Sir
Frederick Pollock, and their report is the most dreadful indictment
ever drawn up against any nation, civilised or uncivilised.
It says: ‘In the minds of Prussian officers, war seems to have
become a sort of sacred mission, one of the highest functions of the
omnipotent State, which is itself as much an army as a State.
Ordinary morality and the ordinary sentiment of pity vanish in its
presence, superseded by a new standard which justifies to the
soldier every means that can conduce to success, however shocking
to a natural sense of justice and humanity, however revolting to his
own feeling.... Cruelty becomes legitimate when it promises victory.’
Then a very pregnant sentence is added: ‘It is a specifically military
doctrine, the outcome of a theory held by a ruling caste who have
brooded and thought and written and talked and dreamed about war
until they have fallen under its obsession, and been hypnotised by its
spirit.... If this explanation be the true one, the mystery is solved, and
that which seemed scarcely credible becomes more intelligible,
though not less pernicious.’
The use of ‘frightfulness’ as a method of war, in other words, is the
result of diseased psychological conditions. To have ‘brooded and
thought and written and talked and dreamed about war’ is a process
which might well result in an evil obsession as real, and as devilish in
its spirit and its fruits, as possession by the devil himself. But the
most astonishing thing in this whole astonishing story is that
Germany betrays no sense that it has done anything worthy of
blame. It learns with a bewildered exasperation that the outside
world disapproves of this example of German ‘culture.’ The Kaiser is
quite sure that he has the Divine approval in this, and everything
else he does. From the wireless station at Berlin an official
‘explanation’ of this stupendous crime of a destroyed city was sent to
the newspapers of the world:
 ‘The only means of preventing surprise attacks from the
civil population has been to interfere with unrelenting severity,
and to create examples which by their frightfulness would be
a warning to the whole country.’

Now, as an example of inverted ethics, this is almost worthy of a

place in De Quincey’s essay on ‘Murder Considered as One of the
Fine Arts.’ ‘The German Government,’ says Secretary Hay, ‘is
generally brutal, but not often silly.’ Here, however, it is at once both
silly and brutal in a quite superlative degree. It is, of course, exactly
this doctrine of ‘frightfulness’ which has made Germany the outlaw of
the civilised world.
Perhaps nothing in this war will so sharply arrest what we have
called the literary imagination as the uncertainty, the dim half-lights
as to its reasons and issues, with which it began.
Some of the ‘explanations’ of the war are foolish; some are
cynical. The Hon. Bertrand Russell, for example, has written a book
on the war in which he says the nations of Central Europe are
fighting for much the same reason dogs do—because ‘they don’t like
each other’s smell‘! Would anyone quote now, as an explanation of
the war, that couple of pistol-shots in a street in Serajevo which slew
the Archduke Franz Ferdinand and his wife? It is like offering the
bursting of a soda-water bottle as the explanation of a Niagara, or
tracing an earthquake to the explosion of a cracker. The Austrian
ultimatum to Servia seems to be the match which fired the
magazine; but if there had been no ‘magazine’ the ‘match’ would
have been quite innocent.
For Great Britain, the first reason of the war was something
immediate and concrete—the German invasion of Belgium. Great
Britain was pledged, both by express treaty and by its historic policy,
to maintain that neutrality; and when the German columns crossed
the Belgian frontier war was inevitable. It was a simple question of
good faith; England, Mr. Asquith declared, must keep her pledged
word. But when the war was begun it was quickly realised that the
existence of the Empire depended on its result; and so Mr. Bonar
Law told the House of Commons, ‘This is a fight for our national
existence.’ That is certainly true, and it applies with greatest force to
the Dominions. If the British Empire goes into liquidation, the most
coveted assets will be Australia, with its 12,000 miles of girdling sea,
its radiant climate, its mineral wealth, its vast pastures, or New
Zealand, the Great Britain of the Pacific. The men in the French and
Flemish trenches are certainly fighting for—amongst other things—
the safety of every home in Australia and New Zealand. But the war
raised the question of the value of the treaty relations which bind
civilised States together; so, as Lord Rosebery put it, we are fighting
for ‘the sanctity of public law in Europe.’ A German victory would turn
every treaty throughout Christendom into a ‘scrap of paper.’ In the
first message, again, King George addressed to the Empire, he said,
‘We are fighting for the continuity of civilisation;’ and that also is true.
The defeat of the Allies would put not only Europe, but Christendom,
back into the Dark Ages.
In this way, as the war went on, its ‘reasons’ expanded: the
obligation of the pledged word; our national existence; the sanctity of
public law; the continuity of civilisation. Yet even these reasons all
put together are inadequate. There remains something in the war
differentiating it from any other ever fought; some intangible and
invisible element not easy to define. In his famous speech in the
Guildhall Mr. Asquith expressed this by saying ‘This is not so much a
material as a spiritual conflict.’ It is a conflict, in other words, not
racial, political, dynastic, or a mere wrestle of political ideals. It is a
battle of opposing ethical codes. We are fighting not merely a nation,
but a doctrine—something that steel cannot pierce nor high
explosives wreck. And it is a doctrine armed, disciplined, terrible;
fighting with 17-inch howitzers and poisonous gases, with
submarines.
But what exactly is the ‘doctrine’ against which we are fighting? It
is customary to quote Nietzsche at this point, and find in his teaching
the germ of the ‘doctrine’ for which to-day Germany fights, and
against which the rest of the world is in arms. But for one thing it is
difficult to discover any single sustained and intelligible ‘doctrine’ in
the structure of Nietzsche’s works. He died in a lunatic asylum, and
had a strain of lunacy in his writings, if not in his blood, long before
his insanity came under medical treatment. He had a touch of
genius, but thin partitions divided his genius from madness. If
Germany took its creed from Nietzsche it would be not only furiously
anti-Christian and furiously atheistic, but even furiously non-moral.
‘Morality,’ Nietzsche said, ‘ought to be shot at. Pangs of conscience
were indecent.’ In that dim realm into which his half-insane mind
wandered—the ‘twilight of the gods’—evil and good had no
existence. As for Christianity, he called it ‘the greatest of all
conceivable corruptions,’ the ‘one immortal blemish of mankind.’
Jesus Christ, for Nietzsche, was ‘a knave, a charlatan.’ Everyone
knows how Nietzsche took the Beatitudes and inverted them. His
creed combined the theology of a lunatic asylum with the ethics of a
gaol. Now the Germany against which the world is fighting to-day is
certainly not atheistic, and it at least thinks itself to be intensely
Christian.
What makes the tragedy of Germany in this war, the thing which
puzzles even those who are fighting against it, is the fact that
Germany is acting on a doctrine stranger and more terrible than
Paganism itself. It undertakes to be both Christian and Pagan at the
same time; Christian in the individual life, Pagan as a nation. It has
two eternally hostile codes of ethics: one for the individual and the
other for the State. As a private citizen the German may be a
Christian, and ought to be one; but the moment he puts on a spike-
helmet, or sits at a Government desk, he strips himself of all
Christian morals; vice and virtue change their names for him. As a
soldier he can clothe himself with ‘frightfulness’; can rape, plunder,
kill, burn, with the entire approval of his official—that is to say, his
Paganised—conscience. As a diplomatist, he can lie and cheat and
forswear himself, and leave his Christian self-respect untouched. For
Germany acts on the theory that the State is a non-moral, predatory
entity, for which the distinction betwixt good and evil does not exist. It
stands in no relation to God; it has no more morals than a tiger; it
acts on the law of the jungle. Might, in its dreadful code, is right.
In the Prussianised Germany against which we are fighting we
have, in brief, a double personality. When it acts as a nation it
undergoes a transformation more terrible than that in R. L.
Stevenson’s tale when Dr. Jekyll turned into Mr. Hyde. All the
separate individualities of Germany melt into one gigantic Mr. Hyde
—Mr. Hyde in a spike-helmet. Or, to change the figure, they become
the ‘great blond beast’ of Nietzsche, lawless, predatory, invincible,
the superman, a non-moral monster. The supermen, says Nietzsche,
‘where a foreign country begins, revert to the beast-of-prey
conscience, like jubilant monsters who come with bravado from a
ghastly bout of murder, arson, rape, and torture.... The nation
becomes a magnificent blond brute, avidly rampant for spoil and
victory.’
Treitschke, the little stone-deaf professor of history, proclaimed the
doctrine that the State is a non-moral entity, for which an ethical
code has no meaning. Bernhardi puts the matter more explicitly.
‘Jesus Christ,’ he says, ‘came into the world to establish a society
founded on love; but that principle does not extend to the State’; in
all that concerns the State, Jesus Christ has no authority. His laws
do not extend to that realm. When before in history have we this
doctrine proclaimed from the iron lips of 17-inch howitzers? Here lies
the explanation of all that puzzles us in the present war—the strange
perversities discoverable in German policy: its contempt for truth, its
capacity for cruelty; its blindness to moral distinctions. We are
fighting with a nation which, taken individually, believes itself to be
Christian; but, taken as a nation, it is by deliberate choice Pagan.
‘They chose new gods ... then was war in the gate;’ so runs an
ancient Hebrew psalm, explaining a dark page in a dark history. In
those words, cause and effect are set side by side. Germany has
certainly chosen ‘a new god’; a god of war; the god of high
explosives, of poison gases, of submarines; a god of material forces,
of battles and bloodshed—as ultimate arbiter in the struggle to
spread the Pan-German ideal. Everyone remembers how Nietzsche
inverted the Beatitudes. ‘Blessed,’ he said, ‘are’—not the meek—but
‘the strong, for they shall inherit the earth.’ ‘Blessed are’—not the
peacemakers—but ‘the war-makers, for they shall be called the sons
of Odin.’ Cramb said that in Europe two great spiritual forces,
Napoleon and Christ, oppose each other, and their conflict is ‘the
most significant spiritual phenomenon of the twentieth century.’ He
adds that, in Germany, ‘Corsica has conquered Galilee’; Napoleon,
or what Napoleon represents, is worshipped; not Christ, or what
Christ teaches.
But the Germans do not understand even the Napoleon they
accept as their ideal. That great master of the art of war himself said
that ‘in war moral forces were to material forces as three to one.’ It is
true that by ‘moral’ Napoleon did not exactly mean ‘ethical’; but the
ethical is an essential part of the moral. Germany forgets—or inverts
—the ethical; and that is the most fatal of blunders. For, as Carlyle
teaches, this is a world of facts, and the first condition of success in
any realm is fidelity to facts. And certainly the most important kinds
of ‘facts’ are in the ethical order. They have the quality of eternity in
them. This world has been so constructed by its Maker that a
falsehood is in quarrel with the very system of things, and the
Prussianised Germany, which has set the world in a flame with its
greeds, and hates, and envies, is fighting against the ‘system of
things.’
We, on our part, have greater allies than the nations knitted to us
by formal treaties. With the change of a single word we can adopt
Wordsworth’s memorable lines:

‘... Thou hast great allies,

Thy friends are exultations, agonies,
And Love, and man’s unconquerable mind.’

But in this war we have still mightier allies than these. All the forces
that make for truth, for humanity, for honour, for justice, for freedom,
are our allies. These are the enduring forces of the universe; and the
Maker and Ruler of these forces, of whose character they are the
reflex and of whose will they are the servants, is on our side too.
*** END OF THE PROJECT GUTENBERG EBOOK THE CORNHILL
MAGAZINE (VOL. XLII, NO. 247 NEW SERIES, JANUARY 1917) ***

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