50 Years of Document History
Last month, the National Archives released thousands of documents related to the 1963 assassination of President John F. Kennedy. This document release has taken the political and ediscovery worlds by storm, and for good reason. Reviewing the JFK files is a deep dive into historical document review, and these records serve as a reminder of how far we have come over the past half-century.
A big discovery was how much the JFK records show their age, going back to 1963. There are scanned typed reports that are heavily worn, with handwritten notes, date stamps, and other extrinsic markings.
The JFK documents are also a lesson in how we have defined “documents.” The original Federal Rules of Civil Procedure Rule 34 contemplated requests for “documents” that included “papers, books, accounts, letters, photographs, or objects,” that were not privileged, that evidence material involved in the action within the producing party’s possession, custody, or control.1
“Documents” today are not actually documents, but emails, Excel files, presentations, databases, text messages, Slack chats, and social media, to name just a few forms of electronically stored information.
Reviewing the JFK records brings back memories of what it was like to litigate a case with a document repository that filled a conference room. Attorneys would go through boxes of records (hopefully there were indexes to at least focus what box to look in), and manually review records in a case. We live in a different world today, which began around the time humans first visited the moon.
New Frontiers of Electronically Stored Information
Early in JFK’s presidency, he famously challenged Americans to beat the Russians in a space race by sending people to the moon by 1970. In the wake of his death, the moon shot was made a priority and accomplished in less than six years on July 20, 1969. The space race created a computer revolution that directly led to the development of new computing technologies in the 1970s.
In popular culture, the gains ranged from Pong to Apple Computers. These were initially luxury items. But today, each member of a family has a smartphone in their pocket with more computing power than the spacecraft that originally went to the moon.
The computer revolution also changed the world of litigation. The first ediscovery case was arguably Honeywell, Inc. v. Sperry Rand Corp. This was litigation involving Iowa State University Professor John V. Atanasoff who, with Clifford Berry, built the first computing machine in December 1939. The device was “capable of solving with a high degree of accuracy a system of as many as 29 simultaneous equations having 29 unknowns.” That lawsuit had 32,654 trial exhibits between the two parties.2
Litigation today can easily have over 32,000 records in a case (and hopefully fewer trial exhibits). Despite it being more voluminous in the modern age, reviewing data today is easier than scanned documents from the 1960s. Scanned documents can present challenges of searchability following optical character recognition (OCR), due to faded text or the quality of the scan. It’s worth noting that these types of documents rarely appear in modern cases, short of toxic tort litigation tracing insurance history, or patent cases with documents going back decades.
Moreover, electronically stored information in its native format is readily searchable. This allows predictive coding, and other forms of technology assisted review, to recognize patterns within the dataset for organization. The same cannot be said of the JFK files. Many of the records have typed written text that likely would have poor OCR, coupled with layers of handwritten notes, and additional stamped dates on the documents. While OCR technology has advanced in the last decade, the technology does not extract text well from handwriting.
Change is the law of life. And those who look only to the past or present are certain to miss the future.
John F. Kennedy
President Kennedy dared the United States to look towards new frontiers. While there is a sense of loss while reviewing the JFK records, there is also the reminder that the great strides in technology from the space race gave us the world we live in today. The question remains, how will the future look back on the present? Will the world of tomorrow have holographic text messages? 3D data clustering to identify communication patterns? Whatever those answers are, it is up to the present to build that future.
1See, Advisory Committee Notes for Proposed Federal Rules of Civil Procedure, April 1937.
2Honeywell, Inc. v. Sperry Rand Corp., 1973 U.S. Dist. LEXIS 15600, at *74-79 (D. Minn. 1973).