Electronic Data Discovery: Litigation Gold Mine or Nightmare?

by James A. Snyder¹ and Angela Morelock²

"Why didn't you delete it?" are words that have no doubt been shouted in the wake of recent litigation that has turned on evidence of electronic data discovered by an opposing party. Examples of recent disputes in which the discovery of electronic data (sometimes data that someone had attempted to delete) has taken center stage include high profile cases like the Microsoft antitrust trial, the investigation of President Clinton, and the Rodney King investigation. In each of these disputes, and scores of others, the discovery of electronic data has had a profound impact on the course of the dispute.

Electronic data discovery has come of age and is no longer the province of the high-end litigators.

The Nature of Electronic Data

Electronic data, and in particular e-mail communications, have a number of different attributes that make for a fertile ground for exploration in litigation.

First, increasingly many employees have access to e-mail systems.³The access to e-mail communication systems opens up a whole new world of communication opportunity for company personnel. Because of the relative ease of delivering an electronic communication, the sheer volume of statements, admissions, conflicting information, and correspondence has increased dramatically over the last five years.⁴ This volume increases both the likelihood of a "smoking gun" type of statement and evidence of mitigating facts to explain the context of a particular communication or statement. Even for a relatively small organization, the volume of messages sent electronically can be staggering.⁵ For example, a 1,000-person organization with each person sending eight messages per day results in two million electronic messages annually, not taking into account redundancies and send-on messages.⁶

Second, electronic communications often have an informality and truthfulness about them, thereby making particularly credible evidence at trial if properly authenticated and admitted.⁷ The credibility of this evidence is derived from the perception that the guard of the e-mail writer is down and that truth often emerges when a more informal and spontaneous communication is sent.

Third, electronic communications are often accompanied by a company sanctioned-statement about the intended purpose of the communication and a "signature" tag implying that the communication is being sent on behalf of the company. These communications can be viewed as representing an official position of the company, although they may actually only represent a personal view or opinion.⁸

Fourth, while there may be a perception that electronic communication is transitory and can be easily deleted, this perception almost always is at odds with reality.⁹ This perception gap is created by the existence of multiple copies of the electronic communication and the likelihood that it was sent on to multiple persons who themselves perhaps have multiplied the number of extant copies of the communication. This electronic proliferation creates numerous discovery opportunities for a single communication.

In addition to the natural electronic proliferation of the electronic communication, the deletion of electronic data is often difficult to accomplish.¹⁰ Increasingly, technology is available to recover "deleted" documents in a manner that preserves the evidentiary integrity of the data. This reappearance propensity has been labeled "the vampire effect" of electronic data.¹¹

Finally, in many instances the company has no formalized system for organizing or retrieving electronic communications, nor does the company have policies and procedures regarding the retention of such electronic data.¹²

Electronic Data Retrieval Technology

Computer forensics – the collection, preservation, analysis and court presentation of computer-related evidence – has developed as a specialized field in order to harness the power of the vast amounts of digital information for use in litigation. Increasingly, such computerized information does not exist in hard copy, paper form.

Potential Sources of Information

Contrary to popular belief, "deleted" electronic files are often not gone. They remain on the hard drive and are simply marked as space on the hard drive available to be overwritten. However, it may be months, or even years, before that happens. Even if a deleted file is overwritten, fragments of that file may still exist on the hard drive. Recovery from temporary files, backup tapes and unofficial user backups often has tremendous potential.

Further, much information is recorded on a computer's hard drive unbeknownst to the user without even being saved. For example, if a file, e-mail or Internet site was viewed or printed from a particular machine, evidence of that activity can often be recovered. Many software programs also store automatic backups and versions of documents, which can not only be recovered, but can demonstrate the history of a particular document and changes made from one version to another.

Hard drives are not the only place to turn for potential electronic evidence. Network servers, e-mail servers, backup tapes and other computerized storage should also be considered. In addition, electronic calendars, printers, fax machines and copiers are often sources of electronic evidence.

Printout Missing Important Information

If electronic files are produced only in printed form, there is important background information missing. This information, or metadata, provides such information as the file's location, creator, date created, date last accessed, etc. This information is only accessible by obtaining the file in electronic format. Electronic copies also provide file formatting, information about password and other forms of protection, notes embedded and hidden in the document, and certain version information. Paper copies are not an acceptable substitute.

Fragile Nature of Electronic Evidence

Electronic evidence is fragile. Simply turning on the subject computer or accessing a file will change critical information on the hard drive, particularly related to date/time stamps. In order to preserve electronic evidence, special procedures and tools should be utilized to make an exact image copy of the media – without altering a single byte of data. In this way, the chain of custody and forensic soundness of the electronic information is maintained.

Finding What You Need

Once an image copy is obtained, information relevant to a particular litigation is identified through forensic analysis of the data contained on the image copy. Many methods exist for analyzing the data to find relevant information, including searching by keyword, file type, time stamps and other file attributes. More advanced data mining techniques include text and numeric pattern recognition, as well as providing for the analysis of audio, graphics and video files. In addition to locating a file of interest, computerized information is often useful in recreating a timeline of events at issue in litigation.

What the Courts Have Done

The legal status of electronic communications has been an evolving area of law since the late 1980s and early 1990s. Many courts have not yet addressed the issue, and the law is still very much in a state of early development.¹³

Despite the relative infancy of the law, there appear to be three current national trends with respect to electronic data discovery. First, while e-mail and electronic data were virtually never considered viable targets for discovery 10 years ago, the trend is for litigants to request such data in discovery and to pursue its production. Second, most courts considering discovery requests for electronic data are requiring production of such information. Third, electronic data is finding its way into the courtroom and is having profound impact in many cases. Courts are generally not persuaded by the authenticity, best evidence rule, Daubert,¹⁴ chain of custody, and other challenges to the introduction of electronic data at trial.

The Accelerating Pace of Discovery Related to Electronic Data

Twenty years ago it was not common for counsel to specifically request evidence of electronic data as a routine discovery request. That practice has changed. Today, it is common to see requests for electronic data; increasingly, attorneys are pursuing those requests with vigor in trial courts across the country.¹⁵

Wright observed in the Federal Practice and Procedure Treatise that this trend started in the mid-1980s:

[I]t has become evident that computers are central to modern life and consequently also to much civil litigation. As one district court put it in 1985, "[c]omputers have become so commonplace that most court battles now involve discovery of some computer-stored information."¹⁶

Prior to 1990, the terms "electronic data discovery" and "e-mail" only very infrequently appeared in the reported decisions in this country.¹⁷ During the period from 1981-1989, the terms appeared in 28 reported decisions. In most of the 28 decisions, e-mail or electronic data was not a significant issue in the case.¹⁸

During the following decade, the consideration of electronic data issues in reported decisions increased at a remarkable pace. In 1993 alone, for example, there were 29 reported decisions addressing electronic data issues of some nature.¹⁹

The increasingly frequent reference to electronic data in judicial decisions mirrored what was happening in the trial courts. By the late 1990s the practice of seeking electronic data had become a commonplace litigation strategy throughout the United States; the practice is expanding at an accelerating pace.²⁰

Discovery Issues

The 1970 amendment to Rule 34²¹ in the United States established that information in electronic form is to be considered the same as information in hard-copy paper form. Thus, the real battleground has not been whether production of digital data is required, but rather the scope of production permitted under Federal Rule of Civil Procedure 26 and the initial disclosure requirements under Federal Rule of Civil Procedure 26(a).²²

Concerns About Cost and Confidentiality

When confronted with discovery concerns about electronic data discovery, some courts have refused to order discovery on the grounds that the discovery was too burdensome, was not reasonably calculated to lead to the discovery of admissible evidence, or involved confidential information. For example, in Alexander v. Federal Bureau of Investigation²³ the trial court faced an issue regarding the cost and time involved in the production of electronic data. The evidentiary record before the court established that the time and expense involved in providing the requested information was onerous. The court did not require the discovery to go forward.²⁴ Similarly, in Fennell v. First Step Designs, Ltd.,²⁵ the court affirmed the trial court's refusal to allow a litigant access to the defendant's computer hard drive to determine whether a document was composed before or after plaintiff's claim of discrimination. The First Circuit concluded that the trial court had not abused its discretion in finding that the "risks and costs" associated with the computer hard drive review proposed by plaintiff were not warranted in that case.²⁶ Likewise, in Strasser v. Yalamanchi²⁷ the court granted a petition seeking protection from a trial court order granting plaintiff unlimited access to the petitioner's computer system. The court granted the petition on the grounds that the access would involve the disclosure of potentially confidential information, but it suggested that a more restricted access might well be appropriate.²⁸

As courts have become more accustomed to electronic data issues in litigation, they appear now more likely to require production of electronic data. For example, in Playboy Enterprises, Inc. v. Welles,²⁹ plaintiff sought discovery access to the plaintiff's computer hard drive to recover deleted e-mail messages that may be stored on the hard drive of defendant's personal computer. The court determined that access to the hard drive would be granted and established a protocol under which the examination could take place, including the appointment of a forensic computer expert.³⁰

In Simon Property Group L.P. v. mySimon, Inc.³¹ the court followed the forensic expert protocol approach outlined in Welles. There the court again considered a request for access to computer hard drives to search for deleted documents that were potentially relevant to the litigation. Following the Welles protocol in many respects, the court ordered access to the computer hard drives of certain selected computers.³² The court ordered the production to take place under very specific conditions designed to address the confidentiality, undue burden and business interruption concerns raised in opposing the discovery.³³

The trend now appears to be requiring production of electronic data where the expense, burden and inconvenience can be controlled in some manner. In Linnen v. A. H. Robins Co., Inc.,³⁴ the court considered a request for backup tapes containing electronic mail and other documents. Defendant objected to the request and sought to have the cost of any such production and inspection absorbed by the plaintiffs. The court ordered the production of the backup tapes and denied the request to transfer the cost of the production to the plaintiffs. The court stated that the cost associated with the production was "one of the risks taken on by companies which have made the decision to avail themselves of the computer technology now available to the business world. To permit a corporation . . . to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results."³⁵ Similarly, in In re Brand Name Prescription Drugs Antitrust Litigation,³⁶ the court found that "[t]he normal and reasonable translation of electronic data into a form usable by the discovering party should be the ordinary and foreseeable burden of a respondent. . . ."³⁷

The voluntary disclosure of electronic data as part of the initial disclosure process has been considered by at least one court. In Kleiner v. Burns,³⁸ the court addressed the Rule 26(a)(1)(B) disclosure obligations that existed prior to December 1, 2000 to include an obligation to describe and categorize the nature and location of the following types of documents:

voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information. The disclosing party shall take reasonable steps to ensure that it discloses any back-up copies of files or archival tapes that will provide information about any "deleted" electronic data.³⁹

The court added that it did "not intend this list to be exhaustive" and went on to discuss the disclosure obligations with respect to "deleted electronic data" in some detail.⁴⁰ Although Federal Rule of Civil Procedure 26(a)(1)(B) initial disclosure obligations were amended effective December 1, 2000, to the extent a party wishes to use electronic data to support its claims, the broadly defined categories of electronic data described in Kleiner may still apply even in the initial disclosure phase.

Admissibility Challenges to Electronic Data

Authentication Challenges

Federal Rule of Evidence 901(a) provides that the authentication of a document "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."⁴¹ In addressing admissibility of computer evidence under Rule 901(a) and the state court equivalents, courts have tended to focus on the same types of balancing and fairness tests that have been applied for years.

A good example is United States v. Tank.⁴² There the court addressed the question of authentication of Internet chat room logs that were maintained by one of the co-defendants. Defendant asserted that the government had laid an insufficient foundation for the admission of the logs. The government evidence included testimony from one of the co-defendants about the procedure he used to create the logs and his recollection that the logs appeared to be an accurate representation of the conversations among the members. The government also provided evidence linking the screen name used by the defendant to the defendant. Upon this showing the court ruled "it is clear the government made an adequate foundational showing of the relevance and the authenticity of the chat room log printouts."⁴³

In United States v. Scott-Emuakpor,⁴⁴ the court considered the defendant's motion in limine regarding documents found on defendant's computers. The court ruled that there were available to the government a number of different authentication procedures and that the government could meet the authentication requirement "through the testimony of a witness who was present and observed the procedure by which the documents were obtained from Defendant's computers."⁴⁵

The evidentiary showing required to introduce electronic data evidence varies from case to case. Some courts have required only minimal testimony. In United Sates v. Whitaker,⁴⁶ an FBI agent obtained a printout of business records from a suspect's computer by simply operating the computer, installing Microsoft Money and printing the records.⁴⁷ The court affirmed the admission of the printouts, finding that testimony of the agent with personal knowledge of the process used to retrieve and print the data provided sufficient authentication of the records.⁴⁸ In others cases the required showing has been more stringent. For example, in Gates Rubber Co. v. Bando Chemical Industries, Ltd.,⁴⁹ the court considered objections to the methodology of one of the forensic experts and imposed sanctions for the failure to use the most current forensic technology available to perform the work.

The Tank and Scott-Emuakpor cases are good illustrations of what appears to be the trend with respect to authentication issues relating to electronic data. The courts seem inclined to take a common sense balancing approach with respect to the evidence, considering the process by which the evidence was extracted and the attendant circumstances as strong evidence regarding the authentication of the electronic data.

Best Evidence Challenges

Rule 1002 of the Federal Rules of Evidence states: "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required. . . ."⁵⁰ In Missouri the "best evidence rule" is a rule of limited application, although it has sometimes been held that "a party must produce the best evidence that he or she is capable of producing."⁵¹

The concept of an "original" is difficult to apply to electronic data. The Federal Rules of Evidence address this issue in two different ways. Rule 1006 provides that "[c]ontents of voluminous writings, recordings…may be presented in the form of a chart, summary, or calculation."⁵² Rule 1001(3) provides "[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original.'"⁵³ Thus, under either Rule 1006 or 1001(3), the "best evidence" challenge to computer electronic data should be overcome in most cases.

In Missouri, courts have often held that, where the underlying records are numerous, complicated, or voluminous, summaries of those records may be introduced into evidence if the original records are admissible themselves.⁵⁴

Although not expressly labeled as such, "best evidence" issues were considered in Armstrong v. Executive Office of The President.⁵⁵ There the court ruled that a "hard copy" paper printout of an electronic document would not "necessarily include all the information held in the computer memory as part of the electronic document."⁵⁶ The court further noted that without the retention of a complete digital copy of an electronic document, such as an e-mail message, "essential transmittal relevant to a fuller understanding of the context and import of an electronic communication will simply vanish."⁵⁷

The vast majority of "best evidence" objections can be met by careful reading of the applicable rules of evidence as they apply to computer data. In Missouri and elsewhere, a proponent of electronic data, however, needs to be prepared to provide a complete digital copy of a document that is offered to meet any possible "best evidence" challenge to admission.

Business Record Challenges

Some proponents of computer data seek admission under the business records exception to the hearsay rule. This exception is set forth in Rule 803(6) of the Federal Rules of Evidence and generally requires the proponent of the evidence to establish: (1) that data was made and "kept in the course of the regularly conducted activity"; (2) that it was made at or near the time of the events; and (3) that it was the regular practice of the business to make the data entry.⁵⁸ In Missouri, business records are admissible pursuant to an affidavit of the records custodian setting forth the substantially similar facts as are set forth in Rule 803.⁵⁹

Some courts have been reluctant to admit electronic data under the "business record" exception to the hearsay rule. For example, in Monotype Corp. PLC v. International Typeface Corp.⁶⁰ the court found e-mail was a far less systematic business activity and ruled that the trial court had properly excluded the e-mail transmission at issue.⁶¹

The alternative and more sound view is set forth in People v. Lugashi.⁶² There the court ruled that the electronic computer data was properly admitted under the business record exception to the hearsay rule.⁶³ The court declined to adopt a restrictive test requiring that the proponent of the computer evidence introduce testimony on the acceptability and reliability of the particular hardware and software as a prerequisite to admissibility.⁶⁴

Expert Qualification Challenges

In some cases, the proponent of electronic evidence will seek not only to introduce the data but also an opinion regarding the data in question. Rule 702 of the Federal Rules of Evidence provides that in order for a witness to be qualified as an expert, the expert must be shown to have "knowledge, skill, experience, training, or education" regarding the subject matter involved.⁶⁵ In Missouri, the admission of expert opinion in civil cases is governed by a statute substantially similar to the Rule 702 provisions.⁶⁶

The need for expert testimony arises in at least two different respects. First, an expert may be called upon to address authentication and authenticity types of issues. For example, in People v. Lugashi⁶⁷ the court considered the type of witness who would need to give testimony to properly authenticate the underlying data extracted from a computer. The court ruled that "a person who generally understands the system's operation and possesses sufficient knowledge and skill to properly use the system and explain the resulting data" is a "qualified witness."⁶⁸ Second, an expert may be called upon to state certain conclusions that flow from computer forensic work. In United States v. Scott-Emuakpor,⁶⁹ the court considered the qualifications of FBI agents who recovered certain data from defendant's computer to serve as experts. The court ruled that, despite the admission from one of the agents that he was not an expert in the area of computer science, he would be permitted to testify about what he did in examining the computer equipment and the result of his examination.⁷⁰ The court further stated that it appeared that he would probably qualify as a Rule 702 expert.⁷¹

It is not uncommon for an examiner to be asked to interpret the recovered data. For example, in United States v. Hilton⁷² the court permitted expert testimony from a computer forensic examiner to interpret the data gleaned from his examination.

The courts have not been hesitant to allow computer forensic experts to testify both as to issues of authenticity and interpretations of data. The court in the Scott-Emuakpor case hinted that strict Rule 702 qualifications may not be required to address fact-based issues such as the process used to examine the computer and the results of the investigation. It is likely that courts will scrutinize the qualifications more carefully when interpretations are sought to be drawn from the data.

Daubert/Frye/Kuhmo Tire Challenges

The admissibility of computer forensic data and opinions has also been challenged under Daubert v. Merrell Dow Pharmaceuticals, Inc.⁷³ The Daubert analysis has been refined in subsequent cases, including Kumho Tire Co. v. Carmichael,⁷⁴ which can be read to extend the Daubert requirement to cover technical processes as well as scientific opinion evidence. In Missouri, many courts continue to follow the less restrictive test set forth in Frye v. United States,⁷⁵ but in State v. Biddle⁷⁶ the Supreme Court of Missouri appeared to alter the Frye formula slightly and held that results of scientific techniques are inadmissible if they lack "wide scientific approval" of their reliability.⁷⁷

Any proponent of electronic data needs to anticipate the possible Daubert/Frye/Kuhmo Tire challenges to the data. At a minimum this should include consideration of the following:

(1) Whether the computer forensic "theory or technique . . . can be (and has been) tested;"⁷⁸

(2) "[W]hether it has been subjected to peer review and publication;"⁷⁹

(3) Whether, in respect to a particular technique, there is a high "known or potential error rate;"⁸⁰ and

(4) Whether the theory or technique enjoys "general acceptance" within the "relevant scientific community."⁸¹

Conclusion

Electronic data discovery is a potent tool that litigators are using at an accelerating pace. Numerous evidentiary objections are available in seeking to exclude the evidence. Care must be taken in the extraction, preservation and presentation of electronic data to overcome the common objections.

Endnotes

¹ Mr. Snyder is general counsel and the national director of BKD, LLP's Forensics and Dispute Consulting Services Group. He received his J.D. degree from the University of Wisconsin in 1982. Mr. Snyder acknowledges the assistance of Tasha Quick, who assisted with many aspects of this paper.

² Ms. Morelock is a managing consultant in BKD, LLP's Forensics and Dispute Consulting Services Group. She is a CPA and certified fraud examiner specializing in fraud investigation and computer forensics.

³ Samuel A. Thumma and Darrel S. Jackson, The History of Electronic Mail in Litigation, 16 Santa Clara Computer & High Tech. L.J. 1, 2 (1999).

⁴ Id. at 2.

⁵ Id. at 2.

⁶ Id. at 2.

⁷ Daniel S. Skupsky, Chapter 5. "Discovery and Destruction of E-mail", The Internet and Business: A Lawyer's Guide to the Emerging Legal Issues, Computer Law Association 1, 2 (1996).

⁸ Id. at 2.

⁹ Kenneth J. Withers, Self Deleting E-mail—A Self Delusion?, Discovery Edge 1, www.fiosinc.com.

¹⁰ Id. at 1.

¹¹Kenneth J. Withers, "Is Digital Different? Electronic Disclosure and Discovery in Civil Litigation," December 30, 1999. www.kenwithers.com.

¹² Id.

¹³ A review of Missouri state court cases revealed only a few decisions prior to 1990 mentioning electronic data discovery or e-mail. Although the number of Missouri cases mentioning e-mail has accelerated, the e-mail and electronic data discovery issues are not central to the cases.

¹⁴ Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

¹⁵ Larry Johnson, "Guerrilla Raids on the Honey Pot: Going Straight for Email" Fios (2000) www.fiosinc.com.

¹⁶ 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure, § 2218 (1994) (quoting Bills v. Kennecott Corp., 108 F.R.D. 459, 462 (D. Utah 1985)). Similarly, the Manual for Complex Litigation (Third) recognizes that the benefits and problems associated with computerized data are substantial in the discovery process and at trial, and that courts must address such issues early. Manual for Complex Litigation (Third), § 21.446 (1995).

¹⁷ Samuel A. Thumma & Darrel S. Jackson., The History of Electronic Mail in Litigation, 16 Santa Clara Computer & High Tech. L.J. 1,3 (1999).

¹⁸ Id. at 4.

¹⁹ Id. at 4.

²⁰ Adam Cohen & David Lender, "Electronic Discovery: Still Uncharted Seas – Part I" Weil, Gotshal & Manges, LLP(2001), www.fiosinc.com..

²¹ The Advisory Committee Notes for the 1970 amendments to the Federal Rules of Civil Procedure note the expansive nature of the term "document" as used in the Rules. The Notes make it clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can be made usable by the discovering party only through respondent's devices, the responding party may be required to use his devices to translate the data into usable form.

²² Fed. R. Civ. P. 26(a).

²³ 188 F.R.D. 111 (D. D.C. 1998).

²⁴ Id. at 117.

²⁵ 83 F.3d 526 (1st Cir. 1996).

²⁶ Id. at 532, 534.

²⁷ 669 So.2d 1142 (Fla. App. 1996).

²⁸ Id. at 1143.

²⁹ 60 F.Supp.2d 1050 (S.D. Cal. 1999).

³⁰ Id. at 1054.

³¹ 194 F.R.D. 639 (S.D. Ind. 2000).

³² Id. at 641.

³³ Id. at 641-42.

³⁴ 1999 WL 462015 (Mass. Super. 1999), No. 972307.

³⁵ 1999 WL 462015, *6.

³⁶ 1995 WL 360526 (N.D. Ill. 1995).

³⁷ 1995 WL 360526*2.

³⁸ 2000 WL 1909470 (D. Kan. 2000), 48 Fed. R. Serv. 3d 644.

³⁹ Kleiner v. Burns, 2000 WL 1909470 (D. Kan. 2000), 48 Fed. R. Serv. 3d 644.

⁴⁰ 2000 WL 1909470*4, 48 Fed. R. Serv. 3d 644.

⁴¹ Fed. R. Evid. 901.

⁴² 200 F.3rd 627 (9th Cir. 2000).

⁴³ Id. at 630.

⁴⁴ 2000 WL 288443 (W.D. Mich. 2000).

⁴⁵ Id. at *13.

⁴⁶ 127 F.3d 595 (7th Cir.1997).

⁴⁷ Id. at 600-601.

⁴⁸ Id. at 600.

⁴⁹ 167 F.R.D. 90 (D. Colo. 1996).

⁵⁰ Fed. R. Evid. 1002.

⁵¹ William A. Schroeder, 23 Missouri Practice, Missouri Evidence § 1000.1 (2000).

⁵² Fed. R. Evid. 1006.

⁵³ Fed. R. Evid. 1001(3).

⁵⁴ See, e.g., Union Electric Co. v. Mansion House Center North Redevelopment Co., 494 S.W. 2d 309, 314 (Mo. 1973).

⁵⁵ 1 F.3rd 1274 (D.C. Cir. 1993).

⁵⁶ Id. at 1280.

⁵⁷ Id. at 1280. (Emphasis added).

⁵⁸ Fed. R. Evid. 803(6).

⁵⁹ Section 490.692, RSMo 2000.

⁶⁰ 43 F.3d 443 (9th Cir. 1994).

⁶¹ Id. at 450.

⁶² 205 Cal.App.3d 632 (1988).

⁶³ Id. at 644.

⁶⁴ Id. at 638.

⁶⁵ Fed. R. Evid. 702.

⁶⁶ Section 490.065, RSMo 2000.

⁶⁷ 205 Cal.App.3d 632 (1988).

⁶⁸ Id. at 640.

⁶⁹ 2000 WL 288443 (W.D. Mich), 2000 U.S. Dist. LEXIS 3118 (decided 1-25-2000).

⁷⁰ 2000 WL 288443,*11.

⁷¹ 2000 WL 288443,*11.

⁷² 2000 WL 894679 (D.Me.).

⁷³ 509 U.S. 579 (1993).

⁷⁴ 526 U.S. 137 (1999).

⁷⁵ See, e.g., Callahan v. Cardinal Glennon Hosp., 863 S.W. 2d 852, 860 (Mo. banc 1993).

⁷⁶ 599 S.W. 2d 182 (Mo. banc 1980).

⁷⁷ Id. at 191.

⁷⁸ Daubert, 509 U.S. 579 at 592-94.

⁷⁹ Id.

⁸⁰ Id.

⁸¹ Id.