Change necessary: electronic discovery under the Manual for Courts-Martial.

• Author: Park, Daniel

1. INTRODUCTION II. ELECTRONIC DISCOVERY TERMS AND THE FEDERAL RULES OF CIVIL PROCEDURE A. Electronic Discovery Terms 1. Volume and Duplicability 2. Persistence. 3. Dynamic, Changeable Content 4. Metadata. 5. Environment-Dependence and Obsolence 6. Dispersion and Searchability B. The Federal Rules of Civil Procedure 1. Rule 26 of the Federal Rules of Civil Procedure 2. Rule 34 of the Federal Rules of Civil Procedure 3. The Seventh Circuit Electronic Discovery Pilot Program III. ELECTRONIC DISCOVERY IN CRIMINAL PROCEEDINGS THE FEDERAL RULES OF CRIMINAL PROCEDURE IV. THE MILITARY JUSTICE SYSTEM V. DISCOVERY UNDER THE MANUAL FOR COURTS-MARTIAL VI. METHODOLOGY AND POTENTIAL CONSEQUENCES VII. CONCLUSION I. INTRODUCTION

   Since the advent of computer systems in our daily lives, computers have consistently played a larger role in how people interact with each other, on a personal level and on a business level. In less than 100 years computers have gone from the size of a small room to a deck of playing cards. (1) A day rarely goes by where each and every one of us has not sent an e-mail, read a news article on a website, purchased an item from an online vendor, or updated our Facebook status. (2) Billions of e-mail messages are sent and received on a daily basis such that computer assisted communications have almost replaced telephone and paper correspondence. (3)

   The consistent and pervasive use of technology has had a major impact on civil and criminal litigation. Prior to the 2006 Amendments to the Federal Rules of Civil Procedure, numerous cases and articles have dealt with the use of electronic evidence. (4) The 2006 Amendments to the Federal Rules of Civil Procedure have finally addressed the importance of electronic discovery and have included changes to Rules 16, 26, 33, 34, 37, and 45. (5) Similar changes have yet to be made on the criminal side. (6) Rules 16 and 17 of the Federal Rules of Criminal Procedure presently restrict the scope of electronic discovery. (7)

   While there is a robust discussion of electronic evidence and discovery in civil and criminal litigation within the private sector, there has been little discussion within the military. With the issuance of the 2012 edition of the Manual for Courts-Martial ("MCM"), electronic evidence and discovery is now relevant to military proceedings. (8)

   This Note proposes that the recent amendments made to the Manual for Courts-Martial more fully encompass the realm of electronic discovery but is perhaps deficient and that changes could have been made earlier. It aspires to highlight the similarities among the Manual for Courts-Martial, the Federal Rules of Civil Procedure, and the Federal Rules of Criminal Procedure, and argue that each "entity" should influence the others. Part I provides a brief overview of computer processing with relation to electronically stored information as well as an overview of the amendments made to the Federal Rules of Civil Procedure, with an emphasis on Rules 26 and 34. Part II explores the nature of electronic discovery in criminal proceedings in the private sector. Part III describes the basic framework of the military criminal justice system, including courts-martial and nonjudicial punishment, and the similarities with criminal proceedings in the private sector. Part IV describes the sections of the Rules for Courts-Martial that are particularly relevant for discovery and subsequently electronic discovery. Part V further discusses the methodology of making changes to the Manual for Courts-Martial and explores potential consequences of that method.

2. ELECTRONIC DISCOVERY TERMS AND THE FEDERAL RULES OF CIVIL PROCEDURE

   1. Electronic Discovery Terms

      The use of computers and similar devices has all but taken over our personal and business relationships. Virtually any action an end-user initiates on an electronic device has the potential of creating a product that might be classified as electronically stored information (ESI). Electronic discovery refers to discovery of this type of information. (9) "Electronically stored information includes email, web pages, word processing files, audio and video files, images, computer databases, and virtually anything that is stored on a computing device--including but not limited to servers, desktops, laptops, cell phones, hard drives, PDAs and MP3 players." (10) The amount of electronically stored information is massive--the print collections of the U.S. Library of Congress is ten terabytes while email information produced in one year, in a study conducted in 2000, was an estimated 11,265 terabytes. (11) Electronically stored information also includes the background data associated with the above referenced computer files--metadata. Metadata can be defined as:

      Data typically stored electronically that describes characteristics of ESI, found in different places in different forms. Can be supplied by applications, users or the file system. Metadata can describe how, when, and by whom ESI was collected, created, accessed, modified, and how it is formatted. Can be altered intentionally or inadvertently. Certain metadata can be extracted when native files are processed for litigation. Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. Metadata is generally not reproduced in full form when a document is printed to paper or electronic image. (12) More simply put, "[m]etadata is structured information that describes, explains, locates, or otherwise makes it easier to retrieve, use, or manage an information resource." (13)

      Electronically stored information may also include cache fdes. Cache can be defined as:

      A dedicated, high speed storage location that can be used for the storage of frequently used data. As data may be retrieved more quickly from cache than the original storage location, cache allows applications to run more quickly. Web site contents often reside in cached storage locations on a hard drive. (14) Generally speaking, end-users are unaware of the existence or unintentional creation of cache files. (15)

      There are differences between discovery of physical documents and electronic documents. (16) The Sedona Conference breaks down these difference into six broad categories: "Volume and Duplicability," "Persistence," "Dynamic, Changeable Content," "Metadata," "Environment-Dependence and Obsolescence," and "Dispersion and Searchability." (17) The Sedona Conference is a "non-partisan research and educational institute dedicated to the advancement of law and policy." (18) The Conference has published multiple documents on major topics, including "Electronic Document Retention and Production," "Protective Orders, Confidentiality & Public Access," "The Role of Economics in Antitrust," and "International Electronic Information Management,

      Discovery and Disclosure." (19) Of particular importance is "Electronic Document Retention and Production." (20)

      1. Volume and Duplicability

         As discussed above, the use of computers and similar electronic devices has all but taken over our daily activities. Not only is the sheer volume of electronic information important to e-discovery; duplicability is also a major issue. "Electronic information is subject to rapid and large scale user-created and automated replication without degradation of the data." (21) The simple act of sending an e-mail to one or more users creates multiple copies of the same message on multiple locations. (22) The message could be found on the sender's computer, the recipient's computer, and the Internet service provider's (ISP) server. (23) Another example of duplicative data is a software program's automatic backup system. (24) (25) Microsoft Word automatically can generate a backup copy of any file that a user is modifying. (25) Microsoft Word also has the ability to recover files upon sudden power failure or other malady, even where a user has not had the ability to save the information in the file. (26)

      2. Persistence

         Simple deletion of a computer file is not equivalent to "destruction" of a paper document. This type of deletion only allows the computer to mark the part of the hard drive as ready for new information. (27) This "new" space on the hard drive may or may not be overwritten with new data for days, months, or even years. As a result, the "deleted" file may still be found on the hard drive if it has not yet been overwritten. Experts routinely have the ability to seek out this information if necessary. (28) It is certainly possible to delete a computer file such that it is irretrievable, but this requires an extra step by the user. (29)

      3. Dynamic, Changeable Content

         Computer files often changes without direct interaction from the user. For example, opening a file alters the time and date of when it was last accessed. (30) Even moving a file from one location to another changes information contained in the file. (31) Dynamic webpages are another example. A webpage may be published in a way that automatically posts RSS (32) feeds from another webpage as they become available. In this situation, this webpage is never in a final state as compared to a paper document. (33)

      4. Metadata

         As discussed supra, metadata is information associated with a computer file that can describe the purpose of the file, the time and date of creation, the creator or author of the file, and the location of the file on the hard drive. (34) Metadata can also refer to information that is not seen on a printed version of a file. (35) Spreadsheets are a prime example because they can include formulas or calculations that are not explicitly displayed.

         Danger exists where information stored by the computer as metadata is inaccurate. "For example, when a new employee uses a word processing program to create a memorandum by using a memorandum template created by a former employee, the metadata for the new memorandum...