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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DALLAS REGIONAL OFFICE
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MAX J. MEINDL,
Appellant,
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DOCKET NUMBER
DA-3443-16-0412-I-1
vs.
DEPARTMENT OF HOMELAND
SECURITY,
DATE: JULY 2, 2016
Agency.
NOTICE OF DATA PRESERVATION
REQUEST
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DATE: JULY 2, 2016
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NOTICE OF DATA PRESERVATION REQUEST
Please be advised that Appellant believes electronically stored information to be an
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important and irreplaceable source of discovery and/or evidence in this appeal to the MSRP.
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The appeal requires preservation of all information relating to this instant case/appeal
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regarding the suitability determination of Appellant, from Agency computer systems, removable
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electronic media, and other locations.
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This includes, but is not limited to, email and other electronic communication, word
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processing documents, spreadsheets, databases, calendars, telephone logs, contact manager
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information, Internet usage files, and network access information.
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Agency should also preserve the following platforms in the possession of the Agency or a
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third party under the control of the Agency (such as an employee or outside vendor under
contract): databases, networks, computer systems, including legacy systems (hardware and
DATE: JULY 2, 2016 NOTICE OF DATA PRESERVATION REQUEST - 1
software), servers, archives, backup or disaster recovery systems, tapes, discs, drives, cartridges
and other storage media, laptops, personal computers, internet data, personal digital assistants,
handheld wireless devices, mobile telephones, paging devices, and audio systems (including
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voicemail).
All of the information referenced to or contained in this notice should be preserved for
the following dates and time periods: June 1st 2014 through June 30th 2016.
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PRESERVATION OBLIGATIONS
The laws and rules prohibiting destruction of evidence apply to electronically stored
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information in the same manner that they apply to other evidence. Due to its format, electronic
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information is easily deleted, modified or corrupted. Accordingly, Agency must take every
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reasonable step to preserve this information until the final resolution of this matter. This
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includes, but is not limited to, an obligation to:
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Discontinue all data destruction and backup tape recycling policies;
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Preserve and not dispose of relevant hardware unless an exact replica of the file
(a mirror image) is made;
Preserve and not destroy passwords, decryption procedures (and accompany
software), network access codes, ID names, manuals, tutorials, written instructions,
decompression or reconstruction software;
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Maintain all other pertinent information and tools needed to access, review, and
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reconstruct necessary to access, view, and/or reconstruct all requested or potentially relevant
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electronic data.
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DESCRIPTION OF DATA SOUGHT
This appeal requires preservation of all information from Agency computer systems,
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removable electronic media and other locations relating to this instant case/appeal regarding the
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suitability determination of Appellant. This includes, but is not limited to, email and other
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electronic communication, word processing documents, spreadsheets, databases, calendars,
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DATE: JULY 2, 2016 NOTICE OF DATA PRESERVATION REQUEST - 2
telephone logs, contact manager information, Internet usage files, and network access
information.
1.
Electronic Files. You have an obligation to preserve all digital or analog
electronic files in electronic format, regardless of whether hard copies of the
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information exist. This includes preserving:
a. Active data (i.e., data immediately and easily accessible on the clients
systems today);
b. Archived data (i.e., data residing on backup tapes or other storage media);
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c. Deleted data (i.e., data that has been deleted from a computer hard drive but is
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recoverable through computer forensic techniques); and
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d. Legacy data (i.e., data created on old or obsolete hardware or software).
2.
Agency must preserve active, archived and legacy data including but not limited
to:
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a. Word-processed files, including drafts and revisions;
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b. Spreadsheets, including drafts and revisions;
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c. Databases;
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d. Presentation data or slide shows produced by presentation software (such as
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Microsoft PowerPoint); Graphs, charts and other data produced by project
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management software (such as Microsoft Project);
e. Animations, images, audio, video and audiovisual recordings, MP3 players,
and voicemail files.
f. Data generated by calendaring, task management and personal information
management (PIM) software (such as Microsoft Outlook or Lotus Notes);
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g. Data created with the use of personal data assistants (PDAs), such as
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PalmPilot, HP Jornada; Cassiopeia or other Windows CE-based or Pocket PC
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devices;
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h. Data created with the use of document management software; and
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i. Data created with the use of paper and electronic mail logging and routing
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software.
3.
Agency must preserve media used by Agency computers including but not limited
to:
a. Magnetic, optical or other storage media, including the hard drives or floppy
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disks used by [Plaintiffs/Defendants/Third Party] computers;
b. Backup media (i.e., other hard drives, backup tapes, floppies, Jaz cartridges,
CDROMs) and the software necessary to reconstruct the data contained on the
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media;
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c. Archived media (you should retain a mirror image copy of any media no
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longer in service but used during the following time periods):
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a) [List times here]
4.
Hardware. [Plaintiffs/Defendants/Third Party] [have/has] an obligation to
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preserve all electronic processing systems, even if they are replaced.
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a.
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drives, laptops, PDAs, and other electronic processing devices.
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b.
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This includes computer servers, stand-alone personal computers, hard
Agency should retain copies of any hardware no longer in service but used
during the following time periods: June 1st 2014 through June 30th 2016
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5.
Emails. You have an obligation to preserve all potentially relevant internal and
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external emails that were sent or received. Email must be preserved in electronic
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format, regardless of whether hard copies of the information exist.
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6.
Internet Web Activity. You have an obligation to preserve all records of Internet
and Web-browser generated files in electronic format, regardless of whether hard
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copies of the information exist. This includes Internet and Web-browser-
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generated history files, caches and cookies files stored on backup media or
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generated by an individual employed at Agency.
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DATE: JULY 2, 2016 NOTICE OF DATA PRESERVATION REQUEST - 4
7.
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Activity Logs. Agency must preserve all hard copy or electronic logs
documenting computer use by Agency.
8.
Supporting Information. Agency must preserve all supporting information relating
to the requested electronic data and/or media including:
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a.
supporting documents that aid in reading or interpreting database, media, email,
hardware, software, or activity log information.
9.
Codebooks, keys, data dictionaries, diagrams, handbooks, or other
Information for Employees. Agency should preserve all data that contains the
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information described below for any employees involved in the background check
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and adjudication process of Appellant:
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a.
Name(s) & Job Title(s);
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b.
Basic employee information, including name, date of birth, social security
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number, employee identification number, race, date hired (or re-hired),
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and educational background;
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c.
Employment performance evaluations or reviews;
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d.
All information, including W-2 forms, relating to compensation (including
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salary, bonuses, merit increases, stock options or other forms of
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compensation);
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e.
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For each position held by the employee during [time period], list the job
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title/position, salary level, function or description, location, division,
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department, subsidiary, time in position, and job status (covered or not
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covered), and whether the employee was full-time, part-time or temporary;
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f.
Any disciplinary action or employment contract violations; and
g.
If the individual is a former employee, list the data of departure and reason
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for leaving.
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10.
Other Relevant Information
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DATE: JULY 2, 2016 NOTICE OF DATA PRESERVATION REQUEST - 5
a.
Documents relating to computer systems, programs, software, hardware,
materials, tools or information that Agency uses or used to track, monitor
or prevent discriminatory employment practices.
b.
From June 1st 2014 through June 30th 2016all documents that relate to any
software or hardware computer changes affecting your Human Resources
database.
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DESCRIPTION OF DOCUMENTS AND MEDIA THAT SHOULD BE PRESERVED
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Data Preservation. Agency should immediately preserve all data and information
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about the data (i.e., backup activity logs and document retention policies) relating
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to documents maintained in the ordinary course of business any employees
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involved in the background check and adjudication process of Appellant. This
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includes, but is not limited to, the information listed below.
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a.
Email and any relevant metadata, including message contents, header
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information, and email system logs that was sent or received by or is in the
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possession of any employees involved in the background check and
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adjudication process of Appellant and/or contains information about the
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background check of the Appellant.
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b.
All active and deleted copies of any word processing files, spreadsheets,
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PowerPoint presentations, or other documents that are in the possession of
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any employees involved in the background check and adjudication process
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of Appellant and/or contain information about the background check of
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the Appellant.
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c.
Databases and any information about the databases that are in the
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possession of any employees involved in the background check and
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adjudication process of Appellant and/or contain information about the
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background check of the Appellant.
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d.
All paper and/or electronic logs of computer system and network activity
that pertain to electronic data storage that are in the possession of any
employees involved in the background check and adjudication process of
Appellant and/or contain information about the background check of the
Appellant.
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e.
All active and deleted copies of any electronic calendars or scheduling
programs, including programs maintained on PDAs, that are in the
possession of any employees involved in the background check and
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adjudication process of Appellant and/or contain information about the
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background check of the Appellant.
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f.
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All active, archived, legacy, and deleted copies of any other electronic
data that are in the possession of any employees involved in the
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background check and adjudication process of Appellant and/or contain
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information about the background check of the Appellant.
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g.
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Online Data Storage. If Agency use(s) online storage and/or direct access
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storage devices, they must immediately cease modifying or deleting any
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electronic data unless a computer forensic expert makes a mirror image of
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the electronic file, follows proper preservation protocols for assuring the
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accuracy of the file (i.e., chain of custody), and makes the file available
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for the appeal.
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12.
Offline Data Storage. Offline data storage includes, but is not limited to, backup
and archival media, floppy diskettes, magnetic, magneto-optical, and/or optical
tapes and cartridges, DVDs, CDROMs, and other removable media. Agency
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should immediately suspend all activity that might result in destruction or
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modification of all of the data stored on any offline media. This includes
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overwriting, recycling or erasing all or part of the media. This request includes,
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DATE: JULY 2, 2016 NOTICE OF DATA PRESERVATION REQUEST - 7
but is not limited to, media used to store data from personal computers, laptops,
mainframe computers, and servers.
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Data Storage Device Replacement. If Agency replace(s) any electronic data
storage devices, Agency may not dispose of the storage devices.
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14.
Preservation of Storage Devices. Agency may not modify, delete or otherwise
alter (i.e., by data compression, disk de-fragmentation, or optimization routines)
any electronic data unless a computer forensic expert makes a mirror image of the
electronic file, follows proper preservation protocols for assuring the accuracy of
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the file (i.e., chain of custody), and makes the file available for the appeal and/or
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litigation. The expert must make a mirror image of active files, restored versions
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of deleted files, and restored versions of deleted file fragments, hidden files, and
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directory listings. This includes, but is not limited to, preserving electronic data
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(stored on online or offline storage devices) that came from the following
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hardware or software applications:
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1. Fixed drives on stand-alone personal computers or laptops;
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2. Network servers and workstations; and
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3. Software application programs and utilities.
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PRESERVATION COMPLIANCE
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15.
Activity Log. In order to show preservation compliance, Agency must maintain a
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log, documenting all alterations or deletions made to any electronic data storage
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device or any electronic data processing system. The log should include changes
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and deletions made by supervisors, employees, contractors, vendors, or any other
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third parties.
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16.
Mirror Images. Agency must secure a mirror image copy (a bit-by-bit copy of a
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hard drive that ensures the computer system is not altered during the imaging
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process) of all electronic data contained on the personal computers and/or laptops
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of any employees involved in the background check and adjudication process of
Appellant. The mirror image should include active files, deleted files, deleted file
fragments, hidden files, directories, and any other data contained on the computer.
Agency must also collect and store any offline or online storage devices that
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contain data from any electronic processing devices of any employees involved in
the background check and adjudication process of Appellant.
17.
Chain of Custody. For each piece of media that Agency preserve(s), Agency must
document a complete chain of custody. A proper chain of custody will ensure that
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no material changes, alterations or modifications were made while the evidence
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was handled. Chain of custody documentation must indicate where the media has
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been, whose possession it has been in, and the reason for that possession.
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18.
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Electronic Data Created After This Notice of Preservation. For any electronic data
created after this letter or for any electronic processing systems used after this
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letter, Agency must take the proper steps to avoid destroying potentially relevant
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evidence. This includes following the above preservation protocols.
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19.
Compliance with Agency preservation obligations includes forwarding a copy of
this letter to all individuals or organizations that are responsible for any of the
items referred to in this letter.
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If this correspondence is in any respect unclear, please call me immediately.
Dated this 2nd day of July, 2016.
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/S/
Max J. Meindl, Appellant
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DATE: JULY 2, 2016 NOTICE OF DATA PRESERVATION REQUEST - 9
CERTIFICATE OF SERVICE
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I certify that the attached Document(s) was (were) sent as indicated this day to each of the
following:
Appellant
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Electronic Mail
Max J. Meindl
5 E Austin
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Bellville, TX 77418
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Agency Representative
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Electronic Mail
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Deputy Associate Chief Counsel
Department of Homeland Security
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Leigh Hoburg, Esq., Principal Deputy
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FEMA (OCC/MSLD)
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500 C Street, S.W. (7SW)
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7th Fl.
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Washington, DC 20472-3515
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Leigh-Hoburg@fema.gov
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Leigh.Hoburg@dhs.gov
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July 2nd, 2016
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/s/
Max J Meindl
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Appellant
DATE: JULY 2, 2016 NOTICE OF DATA PRESERVATION REQUEST - 10
