ELECTRONIC DATA

1
ELECTRONIC DATA DISCRIMINATION INVESTIGATIONS

• Peter J. Constantine
• (constantine.peter_at_dol.gov)
• U.S. Department of Labor
• Office of the Solicitor

2
How can electronic data be used in discrimination
investigations?

• Just like paper documents
• Provides additional information/explanation of
  paper documents
• Identifies potential witnesses
• Explains/confirms timing of events
• Provides or explains statistical and comparative
  evidence

3
IT FUNDAMENTALS

• ESI Electronically Stored Information

4
WHAT IS ELECTRONICALLY STORED INFORMATION (ESI)?

• Word processed documents
• Metadata
• Spreadsheets
• PowerPoint presentations
• Instant messages
• Text messages
• E-mails-sent, received, attachments

5

• E-mail
• Deleted files and file fragments
• Databases and other systems used 24/7
• Voice Mail
• Network usage logs
• PDAs such as Blackberries
• Etc.

6
WHERE IS DATA STORED?

• ANSWER Everywhere

7
Example of E-mail

• Stored everywhere Plus!
• Office PC
• Archives
• Backups
• Blackberry
• Email Servers
• Hard Copy
• Home PC
• Removable media
• CD
• DVD
• Flash Drives

8
What makes up an electronic file?

• Visible Data
• Metadata

9
COMMONLY ASKED QUESTIONS

• What is metadata?
• What is hidden in spread sheets?
• Are files ever really deleted?
• How is electronic data backed up and how long are
  back-up tapes retained?

10
METADATA

• Information about a file, document, etc., which
  may describe how, when, and by whom it was
  received, created, accessed and/or modified.
• Data about Data!

11
Metadata

• Microsoft Word Outlook each have 80 fields of
  Metadata
• System Metadata
• Document Properties
• System User
• Location
• Creation and other dates
• Application Metadata
• Subject
• Author
• Manager

12
Metadata Cont

• Embedded data hidden data that a paper copy
  does not show
• Deleted data
• Formulas
• Redlines
• Reviewer Notes
• Strikeouts
• Tracked Changes

13
Excel Spreadsheet Example
14
Excel Spreadsheet Properties
15
Unhiding the hidden worksheet
16
Excel Underlying Formulas
17
BACKUPS

• What is a Backup?

18

• Tape or other Electronic Media
• A snapshot of files as they existed at the moment
  the backup tape was created.
• Not before
• Not after
• The purpose of most government backup systems is
  to restore data in case of catastrophic loss.
• Backups cannot be reliably used to determine if a
  file or piece of data existed.

19
Backups Cont

• Types
• Full
• Complete copy of selected files/directories
• 1 full backup per week total of 4 per month
• 1 full backup per month total of 12 per year
• Incremental
• Copies only the files that have changed since
  the last successful backup.

20
Restoring Data from Backups

• Generally a very difficult process
• Must provide a narrow time frame
• May require search of multiple tapes to obtain a
  complete restored set of data
• Even more difficult when it comes to e-mail

21
Document Retention Policy

• A plan for the management of records/information,
  listing types of documents and how long they
  should be kept.
• Purpose is to provide continuing authority to
  dispose of or transfer records to historical
  archives

22
QUESTION

• What type of ESI might be relevant when
  investigating a discrimination complaint?

23
The Garcia Case

• Would you ask for any electronic data?

24
Ms. Garcia went to the Career Center with her 12
year old son, Luis. Initially, she spoke with
Ms. Martinez, a bilingual receptionist. Ms.
Martinez referred Ms. Garcia to Mr. Jones, an
employment specialist, who only spoke English.
He gave Ms. Garcia some forms to complete and
also asked her to enter some information online
using one of the Career Centers computers.
25
Ms. Garcia said she had great difficulty
understanding Mr. Jones and requested if someone
who spoke Spanish could help her. Mr. Jones told
her that no one was available to assist her.
Luis tried to assist with the written forms and
entering information online. Several weeks
later, Ms. Garcia received a letter, in English,
denying her request for benefits.
26
Possible ESI

• Word processed documents
• E-mails-sent, received, attachments
• Metadata
• Spreadsheets
• Instant messages/Text messages

27
Another Example

• During an office party, Susan shared the good
  news that she is expecting twins. Two days
  later, she received an e-mail from her second
  level supervisor, Marge, confirming the good news
  and asking about the due date for the twins. The
  H.R. Director was copied on the e-mail. Two
  weeks later, the company announced the
  elimination of several positions including
  Susans. The announcement was sent by e-mail to
  all employees and includes a spreadsheet listing
  the various positions to be eliminated.
• Susan believes that she was laid-off because of
  her pregnancy.
• The H.R. Director claims that the lay-offs had
  been planned for several months. She notes that
  the spreadsheet is dated before Susan shared the
  news of her pregnancy. She also notes that Marge
  was not involved in the decision to eliminate
  Susans position.

28
Duty to Preserve Electronic Data

• Required by Federal Rules of Civil Procedure
• Required by EEOC Regulations
• 29 C.F.R. 1602.14

29
PRESERVATION OF ESI

• Once a party reasonably anticipates litigation,
  it must suspend its routine document
  retention/destruction policy and put in place a
  litigation hold to ensure the preservation of
  relevant ESI.
• Failure to preserve evidence may result in
  sanctions, adverse inference.
• Instruct witnesses to preserve electronic data,
  not just paper documents.

30
Investigation Phase

• Consider what electronic information you might
  need when developing investigative plan and
  during the investigation
• Who
• Identify who are the document custodians of
  interest.
• Who holds the electronic evidence relevant to
  the issues.
• What
• What are you looking for?
• Knowing who is likely to create responsive data
  is a good start.
• Know the types of data you are searching for
  (e-mails, Word documents, Excel spreadsheets).
• Narrow your focus

31

• Where
• Where does the data physically reside?
• Emails
• Home/Shared directories
• Backups
• When
• When was responsive data created, modified?

32
CONCLUSION