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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
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Boca Raton, FL 33487-2742

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Names: Matthews, David R., author.

Title: Electronically stored information : the complete guide to management,
understanding, acquisition, storage, search, and retrieval / David R.
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.
Classification: LCC KF8902.E42 M38 2016 | DDC 005.7068--dc23
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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:
in intaglio; others were beaten up with the hammer or chisel so as to
stand in gentle salience above their bed. But, speaking generally, no
attempt was made to model the nude figures of men or women in the
round. No suspicion of the wealth of suggestion latent especially in
the latter, seems to have dawned upon the Assyrian mind. If we
except a few terra-cotta statuettes, the artist who in some way gave
proof of so much resource, of so much skill and ingenuity, seems
never to have felt the charm of female beauty. The beauty of woman
is the light of nature, the perennial joy of the eye; to exclude it from
the ideal world created by the plastic arts is to condemn that world to
a perpetual twilight, to cast over it a veil of chill monotony and
sadness.
 Fig. 261.—Egyptian mirror, actual
size. Louvre. Drawn by Saint-Elme
Gautier.
In the arts of all those peoples who received the teachings of
Egypt and Chaldæa, whether at first hand, like the Phœnicians, or at
second, like the Greeks, the two distinct influences can always be
traced. Mesopotamia may be recognized in certain ornamental
motives, such as the “knop and flower,” the rosettes and palmettes,
as well as in its taste for the symmetry given by coupled figures; still
more clearly is it betrayed in motives into which lions and the whole
tribe of fantastic animals are introduced, struggling with and
devouring each other, and occasionally brought to the ground by
some individual dressed in a long gaberdine and crowned with a
tiara.
On the other hand, it is to Egypt that our thoughts are turned
when the human body meets our eyes in its unveiled nobility, with all
the variety of attitude and outline its forms imply. The peoples of
Western Asia learnt much in the school of the Chaldæan artist, but
the teaching given by the Egyptian sculptor was of a higher order,
and far better adapted to guide them in the way that leads to those
exquisite creations in which delicacy and certainty of hand are
happily allied with imaginative power. Sooner or later such teaching
must have aroused, in open and inquiring minds, a feeling for beauty
like that felt in her peculiar fashion by Egypt, a feeling to which
Greece, when once put in her right way, gave the fullest expression it
has ever received in marble and bronze.
In order to make good a comparison that no historian of art can
avoid, we have placed ourselves successively at two different points
of view, and from both we have arrived at the same result: as artists
the Egyptians take a higher rank than the Assyrians, than those
constructors who obstinately neglected the column even when they
built with stone, than those sculptors who avoided measuring
themselves with nature, and who shirked her difficulties by draping
their figures. But before thus bringing the two methods and the two
ways of looking at form into opposition, we ought perhaps to have
pointed out a difference in which this inequality is foreshadowed. In
all the monarchies of the East the great monuments were
anonymous, or, at least, if a name was given in the official texts it
was not that of the artist who conceived them, but of the king under
whom they were created. It is not till we arrive at Greece that we find
public opinion placing the work of art and its author so high that the
latter feels himself justified in signing his own creation. But although
this practice was not inaugurated in Egypt, numerous inscriptions
bear witness to the high rank held in Egyptian society by the artists
to whom the king confided the construction and decoration of his
buildings.[462] These men were not only well paid; they received
honours which they are careful to record, and their fame was spread
over the whole valley of the Nile. In the cuneiform texts we have so
far failed to discover the name of a single architect or sculptor, and it
does not appear that a reason for the omission is to be sought in the
peculiar conditions of Chaldæo-Assyrian epigraphy. Although
Babylon and Nineveh have not left us thousands of epitaphs like
those rescued from the sands of Egypt, we possess many private
contracts and agreements in which information similar to that
afforded in other countries by the sepulchral steles is to be found.
Neither there nor elsewhere do we find a trace of anything
corresponding to the conspicuous rank held under the Theban
princes of the eighteenth and nineteenth dynasties, by a Semnat, a
Bakhenkhonsou, or any other of the royal architects whose names
have been handed down to us in the texts.
It is unlikely that this difference will vanish when more texts have
been translated. The inequality in the position of the two artists is
readily explained by the unequal development of the two arts.
Egyptian architecture is learned and skilful after a fashion quite
distinct from that of Mesopotamia. It is not content, like the latter, to
spread itself out laterally and to heap up huge masses of earth, to be
afterwards clothed in thin robes of enamelled faïence, of painted and
sculptured alabaster. In spite of their rich decorations, palaces like
those of Nimroud and Khorsabad never quite threw off their
appearance of gigantic improvisations. Their plans once determined
—and Assyrian plans only varied within very narrow limits—the
method of roofing, flat or vaulted, fixed upon for each apartment, all
the rest was only a matter of foremen and their legions of half-skilled
workmen. At the very least we may say that the architect who
superintended the building of a Ninevite palace had a far easier task
than his rival of Thebes or Memphis. The arrangement of porticoes
and hypostyle halls demanded much thought and taste, and, if the
work when finished was at all to come up to the ideas of its creator,
the workmen who cut the graceful capitals and sturdy architraves
from the huge masses of granite, sandstone, or limestone, had to be
supervised with an unremitting care unknown and uncalled for in
Mesopotamia. The architects who raised the colonnades of Karnak
and the Ramesseum for Seti and his famous son, were the Ictinus
and Mnesicles of the East. We may become better acquainted than
we are now with the monumental history of Mesopotamia, but we
shall never find within her borders artists worthy to be placed on a
level with those Theban masters.
And if we compare the sculptors of Thebes and Nineveh, we shall
arrive at the same conclusion. On the one hand we find artists who,
whether they worked for the tomb or the temple, in the most
stubborn or the most kindly materials, chiselled images that either
delight us with their simple truth, or impress us with their noble
gravity and colossal size. A whole nation of statues issued from
those Egyptian studios through which we have conducted our
readers, many of them real masterpieces in their way. In
Mesopotamia, after early attempts that seemed full of promise, the
art of modelling statues was soon abandoned. In the glorious days of
Nineveh, all that was required of the sculptor was a talent, we might
say a knack, for cutting in the soft gypsum or limestone realistic
illustrations of the conquests and hunts of the reigning prince. He
had to turn out purely historical and anecdotic sculpture by the yard,
or rather by the mile; while in Egypt we see the whole nation, with its
kings and gods, revive to a second life in those forceful and sincere
portraits of which so many thousands have come down to our day.
In placing the distinctive features of the individual upon wood or
stone, the sculptor did something more than flatter the vanity of the
great; he prolonged their existence, he helped them to keep off the
assaults of death and to defy annihilation. From Pharaoh to the
humblest fellah, every one had to conciliate the man who possessed
such a quasi-magic power, and from whom such an all-important
service might have to be demanded. The common people bought
ready-made figures in a shop, on which they were content to cut
their names, but the kings and nobles commissioned their statues
from the best artists of the time, and some reflex from the respect
and admiration surrounding the sovereign must have fallen upon the
man to whom he confided the task of giving perpetuity to his royal
features, in those statues that during the whole of his reign would
stand on the thresholds and about the courts of the temple, and on
the painted walls of that happy abode to whose shadows he would
turn when full of years and eager for rest.
 If, before the advent of the Greeks, there were any people in the
ancient world in whom a passion for beauty was innate, they were
the people of Egypt. The taste of Chaldæa was narrower, less frank
and less unerring; she was unable, at least in the same degree, to
ally force with grace; her ideal had less nobility, and her hand less
freedom and variety. It is by merits of a different kind that she regains
the advantage lost in the arts. If her artists fell short of their rivals,
her savants seem to have been superior to those of Egypt. In their
easy-going and well-organized life, the Egyptians appear to have
allowed the inquiring side of their intellects to go to sleep. Morality
seems to have occupied them more than science; they made no
great efforts to think.
The Chaldæans were the reverse of all this. We have reason to
believe that they were the first to ask themselves the question upon
which all philosophy is founded, the question as to the true origin of
things. Their solution of the problem was embodied in the
cosmogonies handed down to us in fragments by the Greek writers,
and although their conceptions have only been received through
intermediaries by whom their meaning has often been altered and
falsified, we are still enabled to grasp their fundamental idea through
all the obscurities due to a double and sometimes triple translation,
and that idea was that the world was created by natural forces, by
the action of causes even now at work. The first dogma of the
Babylonian religion was the spontaneous generation of things from
the liquid element.[463]
The first vague presentiment and rough sketch, as it were, of
certain theories that have made a great noise in the world in our own
day, may be traced, it is asserted, in the cosmogonic writings of
ancient Chaldæa. Even the famous hypothesis of Darwin has been
searched for and found, if we may believe the searchers. In any case
it seems well established that the echo of these speculations
reached the Ionian sages who were the fathers of Greek philosophy.
Their traces are perceptible, some scholars declare, in the Theogony
of Hesiod. Possibly it is so; there are certainly some striking points of
resemblance; but where the influence of such ideas is really and
clearly evident is in those philosophic poems that succeeded each
other about the sixth century B.C., all under the same title:
concerning nature (περὶφύσεως).[464] These poems are now lost, but
judging from what we are told by men who read them in the original,
the explanation they gave of the creation of the world and of the first
appearance upon it of organized beings, differed only in its more
abstract character from that proposed many centuries before, and
under the form of a myth, by the priests of Chaldæa. If we may trust
certain indications, these bold and ingenious doctrines crossed over
from Ionia to the mainland of Greece, and reached the ears of such
writers as Aristophanes and Plato.
It does the greatest honour to Chaldæa that its bold speculations
should have thus contributed to awaken the lofty intellectual
ambitions and the scientific curiosity of Greece, and perhaps she
may have rendered the latter country a still more signal service in
teaching her those methods by whose use man draws himself clear
of barbarism and starts on the road to civilization; a single example
of this will be sufficient. It is more than forty years since Bœckh, and
Brandis after him, proved that all the measures of length, weight and
capacity used by the ancients, were correlated in the same fashion
and belonged to one scale. Whether we turn to Persia, to Phœnicia
or Palestine, to Athens or Rome, we are constantly met by the
sexagesimal system of the Babylonians. The measurements of time
and of the diurnal passage of the sun employed by all those peoples,
were founded on the same divisions and borrowed from the same
inventors. It is to the same people that we owe our week of seven
days, which, though not at first adopted by the western nations,
ended by imposing itself upon them.[465] As for astronomy, from a
period far away in the darkness of the past it seems to have been a
regular branch of learning in Chaldæa; the Greeks knew very little
about it before the conquests of Alexander; it was more than a
century after the capture of Babylon by the Macedonians that the
famous astrological tables were first utilized by Hipparchus.[466]
In the sequel we shall come upon further borrowings and
connections of this kind, whose interest and importance has never
been suspected by the historian until within the last few years. Take
the chief gods and demi-gods to whom the homage of the peoples of
Syria and Asia Minor was paid, and you will have no difficulty in
acknowledging that, although their names were often changed on
the way, Mesopotamia was the starting place of them all. By
highways of the sea as well as those on land, the peoples
established on the eastern shores of the Mediterranean entered into
relations with the tribes of another race who dwelt on the European
coasts of the same sea; they introduced them to their divinities and
taught them the rites by which those divinities were honoured and
the forms under which they were figured. Without abandoning the
gods they worshipped in common with their brother Aryans, the
Greeks adopted more than one of these Oriental deities. This is not
the place to consider the question in detail. We must put aside for
the present both the Cybele of Cappadocia and Phrygia and that
Ephesian Artemis, who, after being domiciled and naturalized in one
of the Hellenic capitals, so obstinately and so long preserved her
foreign characteristics; we must for the moment forget Aphrodite,
that goddess of a different fortune whose name is enough to call up
visions of not a few masterpieces of classic art and poetry. Does not
all that we know of this daughter of the sea, of her journeys, of the
first temples erected to her on the Grecian coasts and of the peculiar
character of her rites and attributes—does not all this justify us in
making her a lineal descendant of Zarpanitu, of Mylitta and Istar, of
all those goddesses of love and motherhood created by the
imagination and worshipped by the piety of the Semites of Chaldæa?
On the other hand the more we know of Egypt the less inclined are
we to think that any of the gods of her Pantheon were transported to
Greece and Italy, at least in the early days of antiquity.
Incomplete as they cannot help being, these remarks had to be
made. They will explain why in the scheme of our work we have
given similar places to Chaldæa and Egypt. The artist will always
have a predilection for the latter country, a preference he will find no
difficulty in justifying; but the historian cannot take quite the same
view. It is his special business to weigh the contributions of each
nation to the common patrimony of civilization, and he will
understand how it is that Chaldæa, in spite of the deficiencies of its
plastic art, worked more for others than Egypt and gave more of its
substance and life. Hidden among surrounding deserts the valley of
the Nile only opened upon the rest of the world by the ports on a
single short line of frontier. The basin of the Euphrates was much
more easily accessible. It had no frontier washed by the
Mediterranean, but it communicated with that sea by more numerous
routes than Egypt, and by routes whose diversity enhanced the
effect of the examples they were the means of conveying to the
outer world.
It is, to all appearance, to the ancient inhabitants of Mesopotamia
that humanity owes the cultivation of wheat, its chief alimentary
plant.[467] This precious cereal seems to have been a native of the
valleys of the Indus and Euphrates; nowhere else is it found in a wild
state. From those two regions it must have spread eastwards across
India to China, and westwards across Syria into Egypt and
afterwards on to the European continent. From the rich plains where
the Hebrew tradition set the cradle of the human race, the winds
carried many seeds besides those by which men’s bodies have so
long been nourished; the germs of all useful arts and of all mental
activities were borne on their breath like a fertilizing dust. Among
those distant ancestors of whom we are the direct heirs, those
ancestors who have left us that heritage of civilization which grows
with every year that passes, there are none, perhaps, to whom our
respect and our filial gratitude are more justly due than to the ancient
inhabitants of Chaldæa.
 ADDITIONS AND CORRECTIONS.

VOL I.

P. 155.—It was not only as mortar that bitumen was used. Mr.
Rassam tells us that he found at Abou-Abba (Sippara), in Chaldæa,
a chamber paved with asphalte much in the same fashion as a
modern street in London or Paris (Proceedings of the Society of
Biblical Archæology).
P. 200.—From a late communication to the Society of Biblical
Archæology we learn that Mr. Rassam found the Sippara tablet in
the corner of a room, under the floor; it was inclosed in an inscribed
earthenware box.
P. 242, line 12; for Shalmaneser III. read Shalmaneser II.
P. 266, line 8 from foot: for Plate X. read Plate IX.
P. 305.—Intercourse between the valley of the Nile and that of
the Tigris and Euphrates seems to have begun not sooner than the
eighteenth Egyptian dynasty. To this conclusion we are led both by
Egyptian texts and by the tablets in the library of Assurbanipal. Most
of the tablets are reprints—if we may say so—of texts dating
originally from Ur, and from the time of the ancient Chaldæan
monarchy. Now these texts seem to have been written by a people
who knew not Egypt; no mention of that country is to be found in
them. They contain a division of the world into four regions, in none
of which Egypt has a place (Sayce, The Early Relations of Egypt and
Babylonia, in Lepsius’s Zeitschrift, p. 150).
P. 349.—We may here draw attention to an object which may be
compared to that described by M. Clermont Ganneau, both for its
intrinsic character and its probable destination. It is a tablet in brown
limestone, portable, and surmounted by a ring or staple cut in the
material. On one face there is a bas-relief in which the goddess who
occupies the lower register in Péretié’s bronze again appears. She
has the head of a lioness, a snake dangles from each hand, the
arms are outstretched, and two animals, in which Layard recognises
a lioness and a sow, hang to her breasts. This goddess stands
before an animal which has a bull’s head in the engraving given by
Lajard. But its feet are those of a horse, and no doubt we should find
that the animal in question was a horse if we could examine the
original; but we do not know what has become of it. If, as there
seems reason to believe, this goddess is an infernal deity, it is easy
to understand why serpents were placed in her hands. These
reptiles are the symbols of resurrection; every year they quit their old
skins for new ones. The object in question is described in detail in
the Recherches sur le Culte de Vénus, p. 130, and figured in Plate
XVI, Fig. 1. Upon one of the larger faces of the tablet and upon its
edges there are inscriptions, magic formulæ according to M. Fr.
Lenormant.
This tablet was formerly in the cabinet of M. Rousseau, at one
time French consul at Bagdad. It was found in the ruins of Babylon.
Size, 24 inches high by 24 inches wide, and 3⅞ inches thick.
P. 384.—In speaking of the excavations made by Sir H.
Rawlinson at Borsippa, we forgot to mention his paper entitled On
the Birs Nimroud; or, The Great Temple of Borsippa (Journal of the
Royal Asiatic Society, vol. xviii. p. 1–32). Paragraphs 1 and 2 give an
account of the excavations, and we regret that we wrote of the
religious architecture of Chaldæa before having read them. Not that
they contain anything to cause us to change our conceptions of the
staged towers. The excavations seem to have been carried on with
great care, but they hardly gave results as complete as they might
have done had they been directed by a thoroughly-trained architect.
VOL. II.

P. 48.—Upon Arvil, the ancient Arbela, and the likelihood of great

discoveries in the mound which there rises 150 feet above the plain,
see a contribution from Sir H. Rawlinson to the Journal of the Royal
Asiatic Society, vol. i. new series, 1865, pp. 190–197. The mound is
at present crowned by a Turkish fort.
P. 176.—Herr Fritz Hommel, one of the few non-French
students of the remains from Tello, is no more inclined than we are to
allow that the igneous rocks from which they are cut were brought
from Egypt. He believes they were won from much nearer quarries,
viz., on the borders of the Arabian plateau (Die Vorsemitische
Kulturen in Egypten und Babylonien, pp. 211–223).
Pp. 188–190.—In enumerating the few monuments of Chaldæan
sculpture that we possess over and above those brought home by
M. de Sarzec, we forgot to mention a small Babylonian head in hard
alabaster, now in the Louvre (Fig. 262). Its workmanship resembles
that of the two heads from Tello (Plate VII.), and some of the small
heads from the same place. It is conspicuous for the same frank and
decided modelling, but it belongs to the period when long beards
were worn.
P. 202.—To the list of Chaldæan sculptures we should, perhaps,
add the rock-cut relief found by Sir H. Rawlinson in the district of
Zohab, about fifty leagues from the left bank of the Tigris, and to the
north-west of Bagdad, near the village of Sheikhan. This district
forms a part of the Persian province of Kirmanchah (Journal of the
Geographical Society, vol. ix. p. 31). The relief occurs, it seems, on
the high road between Babylon and Ecbatana, in the defile which is
now called Tak-i-Girrah, one of the passes leading up through Mount
Zagros to the plateau of Iran. There is a sketch of the relief from the
pencil of Sir H. Rawlinson in the Five Great Monarchies of his
brother (vol. iii. p. 7). The king stands with his foot on the body of a
conquered enemy. An individual, probably the royal general,
presents two kneeling captives, who are held by a cord attached to
rings put through their noses. More captives with ropes about their
necks are carved on the kind of plinth upon which the main group is
supported. The whole picture is about two feet wide and five high.
Near it there is an apparently unfinished inscription in Babylonish
cuneiform characters. The Chaldæan origin of the work is confirmed
by the flounces on the general’s robe. In the same neighbourhood
there are ruins which appear to date from a very early period.
 Fig. 262.—Fragment of a
Chaldæan statuette. Louvre.
P. 219.—We have here omitted to draw attention to one of the
differences between the art of the Sargonids and that of the
preceding dynasty. In the figures from Tello and in the bas-reliefs of
the time of Assurnazirpal the sculptor has left the eyeballs smooth
(Plate VII.; Vol. I. Fig. 15; Vol. II, Figs. 43, 64, 113). In the sculptures
of the time of Sargon and his successors, on the other hand, the
cornea is indicated in the figures both of men and animals, by a
clearly traced circle (Vol. I, Figs. 22 and 25; Vol. II. Fig. 118 and Plate
X.). It was, no doubt, the desire to give a more lifelike expression to
the physiognomy that led the artist thus to modify his proceeding.
There are a few figures in which the desire for imitative truth is
pushed even farther. In a bas-relief in the Louvre there is an eagle-
headed deity in which not only the cornea but the pupil also is
marked by a smaller circle within the first. See the De l’Expression
des Yeux dans la Statuaire of Doctor Debrou (Correspondant, April
10th, 1883). His special knowledge has enabled him to make more
than one remark upon the representation of the eye in ancient and
modern sculpture, to which writers upon art would do well to pay
attention.
P. 398.—On the subject of the female divinity whose worship was
so widely spread over the whole East and over the Mediterranean
coasts, the dissertation of Herr Gelzer, Zum Cultus der Assyrischen
Aphrodite (Lepsius’s Zeitschrift, 1875, p. 127) may be consulted with
profit.
 We received the admirable Guide to the Kuyundjik Gallery,
published by the authorities of the British Museum, too late to make
use of it for our work. It joins to an exhaustive account of the bas-
reliefs of Sennacherib and Assurbanipal a description of the smaller
objects contained in the glass cases of the same gallery. Many of
these objects date from a very early period, and many were found in
Chaldæa. Some of the more interesting texts are translated by Mr.
Pinches; of others he gives a summary. The body of the work is
preceded by an introduction giving such details of Assyrian history,
religion and manners as are required by the general student. When a
similar brochure is forthcoming for the Nimroud gallery—and the
energy of the English officials is a guarantee that we shall not have
to wait long for it—visitors to the museum will be in possession of all
that is necessary to enable them to profit to the fullest extent by its
superb collection.
 INDEX.

Abd-al-Medjid, Sultan, ii. 39.

Abdul-Hamid, ii. 76.
Abou-Abba (or Sippara), i. 200.
Abou-Sharein, i. 157, 190, 262; ii. 34.
Abraham, i. 15, 199.
Abydenus, i. 51;
spoken of by Eusebius, 57.
Abydos, on the Hellespont, ii. 220.
Accad, i. 14, 21, 59.
Acheron, i. 354.
Adar (Saturn?), i. 73.
Adrammelech, i. 103.
Agbatana, see Ecbatana.
Ahmes II., ii. 339.
Ahura-Mazda, i. 88.
Alabaster, found near Mossoul, i. 120;
its distribution, 121;
its constitution, 121;
its characteristics as a material for the sculptor, ii. 110.
Alabastron, ii. 301.
Alexander the Great, i. 54; ii. 382.
Alexander Polyhistor, i. 51.
Allat, i. 83, 345.
Alphabet, invention of, i. 22.
Altaï, i. 21.
Altars, their characteristic forms, i. 236;
with battlements, 255;
circular, 256;
sarcophagus-shaped, 256.
Amanus, ii. 340.
Amber, its absence from Mesopotamian remains, ii. 362.
Amen, i. 78, 79.
Ament, the Assyrian, i. 345.
Amiaud, M., i. 361.
Amoor, i. 19.
Amphora, ii. 300.
Amraphel, i. 36.
Amulets, ii. 251.
Anabasis quoted, i. 361.
Anaïtis, see Oannes.
Animals, grotesque and fantastic, in Assyrian Art, ii. 167–173;
on the seals, ii. 279.
Anthemius, i. 172.
Antioch, ii. 286.
Antiochus-Epiphanes, i. 33.
Aphrodite, ii. 398.
Apollonius of Tyana, i. 299.
Apsou (or Apason), i. 83.
Arade, ii. 265.
Aramaic, or Aramæan, came into common use with the second
Chaldæan Empire, i. 18.
Aram-Naharaim, i. 3.
Arbeles, Arvil (or Ervil), i. 6; ii. 48.
Arch, frequent use of, i. 132, 221;
invented in Chaldæa, 222;
at Mugheir, 222;
in the hanging gardens at Babylon, 223;
in Sargon’s gateways, 224;
in the sewers of the palaces, 227.
Archivolt, enamelled, at Khorsabad, i. 290.
Arioch, i. 36.
Aristophanes, ii. 397.
Aristotle, i. 71;
his Politics quoted in reference to the size of Babylon, ii. 56.
Arithmetic, Chaldæan, i. 68;
origin of the sexagesimal system, 68.
Armenia, annexed by Assyria, i. 7.
Arms, ii. 343.
Arrian, his Indian history, i. 57.
Artaxerxes Mnemon, i. 90.
Artists, their social position in Mesopotamia, ii. 394.
Aryans, said to compose part of the early Chaldæan population,
i. 18.
Aryballos, ii. 306.
Asia Minor, ii. 172.
Ass, the wild, in Assyrian sculpture, ii. 150.
Asshur, the builder of Nineveh, i. 14.
Assur, i. 83;
the Assyrian god par excellence, 84;
fell with Nineveh, 88.
Assurbanipal, i. 36, 44;
receives the homage of Gyges, king of Lydia, 44;
his cruelty, 47;
patron of literature and the arts, 47;
his library, 47;
numerous remains of sculpture dating from his reign, ii. 236.
Assurbilkala, ii. 101, 203, 289.
Assuredilani, i. 51.
Assurnazirpal, i. 42;
his statue in the round, ii. 126.
Assyria, its true boundaries, i. 7;
its successive capitals, 7;
its size, 7;
consolidation of its supremacy, 41;
first A. empire, 41;
second A. empire, 41;
expeditions into Armenia, Cappadocia, and Syria, 41;
strictly a military monarchy, 96;
its régime, 103;
Assyrian monarchy, solidity of the succession, 103;
characteristics of the Assyrian race, 105;
cruelty of the Assyrian kings, 105–7;
luxury of do., 105–7;
constitution of the Assyrian nation, 111;
comparative insignificance of civilian element, 112.
Assyro-Chaldæan language, the, i. 53.
Astarte, i. 345.
Astragali, i. 206.
Astrology, i. 65;
the forerunner of real astronomy, 67.
Athenæum quoted, i. 317.
Aturia, a variant of Assyria, i. 6.
Auben (or Auben-Ra), ii. 120.
Augustus, ii. 382.

Baal worshipped in Judah and Israel as well as Tyre and Sidon,

i. 16.
Baalazar, ii. 336.
Babel, i. 14, 53.
Bab-i-Houmaioun, ii. 72.
Babil, i. 130, 154;
its identity discussed, 384; ii. 35.
Babooshes, i. 238.
Babylon, age of its premiership, i. 38;
more tenacious of life than Nineveh, 54;
etymology of the name, 86;
natural elements of its prosperity, 92;
superiority of its situation over that of Nineveh, 93;
an “eternal city,” ii. 53;
its defences, 53;
incomplete nature of the explorations that have been carried
out on its site, 55;
its size discussed, 56–59;
the stone bridge, 57;
height of the walls, 63.
Bactriana, metals brought from, i. 125.
Bagdad, i. 40, 54.
Bahr-ul-nejef, ii. 176.
Bakhenkhonsou, ii. 394.
Balawat, gates of, i. 194;
steles figured on, 196;
standards figured on, 195;