0001 01 IN THE UNITED STATES COURT OF APPEALS 01 FOR THE FIFTH CIRCUIT 02 02 03 CELIA J. CHIU; DENISE BROWN; * 03 VERONICA C. JENKINS; DENISE * 04 KIRKE; ALFRED G. KIRKE; AND * 04 KENNETH R. JOHNSON * 05 * 05 Plaintiffs/Appellees, * 06 * 06 VS. * 07 * 07 PLANO INDEPENDENT SCHOOL * 08 DISTRICT, ET AL. * 08 * 09 Defendants, * CIVIL ACTION NO. 09 * 00-40613 10 JAMES DAVIS, DR., PISD CENTRAL * 10 CLUSTER AREA ASSISTANT * 11 SUPERINTENDENT; MARILYN BROOKS, * 11 ASSOCIATE SUPERINTENDENT FOR * 12 CURRICULUM AND INSTRUCTIONS; * 12 JAMES WOHLGEHAGEN, DR.; * 13 ROXANNE BURLESON, PRINCIPAL * 13 HAGGARD MIDDLE SCHOOL; CORKY * 14 CRISWELL, PRINCIPAL HENDRICK * 14 MIDDLE SCHOOL; BEVERLY SELLERS, * 15 PRINCIPAL WILSON MIDDLE SCHOOL, * 15 * 16 Defendants/Appellants. * 16 17 17 18 ******************************************** 18 ORAL DEPOSITION OF 19 JIM HIRSCH 19 OCTOBER 5, 2000 20 ******************************************** 20 21 22 ORAL DEPOSITION OF JIM HIRSCH, produced as a 23 witness at the instance of the Plaintiffs, and duly 24 sworn, was taken in the above-styled and numbered cause 25 on the 5th day of October, 2000, from 1:35 p.m. to 0002 01 2:45 p.m., before Sunny Schaen, a CSR in and for the 02 State of Texas, reported stenographically, at the Plano 03 Independent School District, 2700 West 15th Street, 04 Plano, Texas 75075, pursuant to the Federal Rules of 05 Civil Procedure and the provisions stated on the 06 record. 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0003 01 A P P E A R A N C E S 01 02 FOR THE PLAINTIFFS: 02 Mr. William Charles Bundren 03 Attorney at Law 03 P. O. Box 702647 04 Dallas, Texas 75370 04 (972) 630-3555 05 05 06 FOR THE DEFENDANTS: 06 Mr. Richard M. Abernathy 07 ABERNATHY ROEDER BOYD & JOPLIN, P.C. 07 1700 Redbud Boulevard 08 Suite 300 08 P.O. Box 1210 09 McKinney, Texas 75070-1210 09 (214) 544-4000 10 10 11 ALSO PRESENT: Mrs. Ronni Jenkins 11 Mr. Kenneth R. Johnson 12 Mr. Alfred Kirke 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 0004 01 I N D E X 01 02 WITNESS PAGE 02 JIM HIRSCH 03 03 EXAMINATION 04 BY: MR. BUNDREN 5 04 05 05 06 EXHIBITS INDEX 06 07 EXHIBITS DESCRIPTION IDENTIFIED 07 08 72 August 26, 1998, E-Mail to Central 08 Cluster All Principals from Jim Davis 09 with Recipient List 39 09 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 0005 01 P R O C E E D I N G S 02 REPORTER'S NOTE: The following was stated on the 03 record in the deposition of Marilyn Brooks, and by 04 agreement of all parties will also apply for this 05 deposition. 06 * * * * * * 07 MR. BUNDREN: Do you want to take this 08 under the Rules? 09 MR. CRAWFORD: Yes. 10 * * * * * * 11 EXAMINATION 12 BY MR. BUNDREN: 13 Q. Would you state your name for the record, 14 please. 15 A. Yes, it's Jim Hirsch. 16 Q. Okay. Mr. Hirsch, how are you employed? 17 A. I'm employed here with the Plano Independent 18 School District? 19 Q. What is your position with the District? 20 A. I'm the assistant superintendent for 21 technology. 22 Q. How long have you been in that position? 23 A. In its current title, July of this past 24 summer. 25 Q. July of 2000? 0006 01 A. Yes, uh-huh. 02 Q. Were you employed by the school district prior 03 to that? 04 A. Yes. I've been employed since July 1996. 05 Q. What was your position -- or what was your 06 title -- let me put it that way -- prior to becoming 07 assistant superintendent of technology? 08 A. Executive director of technology. 09 Q. When you became assistant superintendent, did 10 your duties and responsibilities change? 11 A. No. 12 Q. Just a new title? 13 A. Yes. 14 Q. And a raise? 15 A. No. 16 Q. We tried, didn't we? 17 A. Yes. 18 Q. Okay. When did you become the executive 19 director of technology? 20 A. That title, November of 1997. 21 Q. And what are your duties and 22 responsibilities -- or what were your duties and 23 responsibilities in November of 1997? 24 A. To coordinate the instructional and 25 administrative uses of technology in the District. 0007 01 Q. Now, instructional uses would be for the 02 children, for education? 03 A. Primarily students and teachers. 04 Q. You also had responsibility for the 05 administrative uses? 06 A. That's correct. 07 Q. And that would include, I would assume, 08 communications between the administration and the 09 principals or people in the field? 10 A. Communications via electronic means. 11 Q. Okay. E-mails? 12 A. E-mails, yes. 13 Q. It's my understanding -- and maybe 14 Mr. Abernathy will stipulate to this -- that you've 15 been produced as a person knowledgeable of the school 16 district's e-mail system? 17 A. Yes. 18 Q. And you're produced for that purpose? 19 MR. BUNDREN: Is that right, Richard? 20 MR. ABERNATHY: For that purpose only. 21 MR. BUNDREN: Okay. 22 Q. All right. Have your duties and 23 responsibilities changed since November of 1997? 24 A. No, they have not. 25 Q. Okay. Tell me, if you would, about the 0008 01 administrative uses of the technology that the District 02 has. 03 A. The administrative uses, again, will cover a 04 wide range of areas. Our primary use, of course, is 05 reporting of student information as required by the 06 state of Texas. In fact, all of our functions, whether 07 they're financial, HR, or in our student record system, 08 all point to that same goal. 09 Q. Did you have, in 1997, a system for the 10 administrative staff to communicate with each other 11 through e-mail? 12 A. Yes, we did. 13 Q. Describe for me, if you would, your 14 administrative e-mail system. 15 A. Every administrative staff member, as well as 16 every teaching staff member, has an e-mail account 17 through our e-mail system. 18 Q. All right. And then how does the system work? 19 A. A user can either receive messages or send 20 messages. And that's the -- I would say that's it. 21 Q. Does the District have some type of a -- let 22 me see how to best ask this question. Where is your 23 office located? 24 A. On this floor of the administrative building. 25 Q. Okay. Here on 15th Street? 0009 01 A. Yes, uh-huh. 02 Q. And somewhere in this building, which is the 03 administrative building, is there a bank of computers 04 that houses all of this information that you manage? 05 A. Yes. This building does house our 06 administrative wiring closet and administrative 07 servers. 08 Q. Okay. So you have administrative servers and 09 an administrative wiring closet; is that right? 10 A. Yes, that's correct. 11 Q. Okay. So would this be like the nerve center 12 of the District's electronic communication system? 13 A. Yes. 14 Q. And that would be the administrative servers? 15 A. Yes. 16 Q. These are a bank of computer servers; is that 17 what they are? 18 A. That's correct. 19 Q. Okay. At each satellite location, at each 20 school -- 21 A. Uh-huh. 22 Q. -- are there also computer terminals that the 23 teachers can use? 24 A. Yes. 25 Q. And do they log on to some -- and do they log 0010 01 on to some system in order to send information to 02 administration or to receive information from 03 administration? 04 A. Each of our users has their individual 05 account, and that's how they communicate with the 06 network. 07 Q. Okay. So an assistant superintendent that has 08 responsibility over a cluster of schools could log on 09 to their e-mail account and then send an e-mail to all 10 of the principals in that cluster? 11 A. Yes. 12 Q. Okay. And you've seen that done, haven't you? 13 A. Yes. 14 Q. You could log on using your account, and you 15 could send an e-mail message to anyone in the system? 16 A. Yes. 17 Q. I assume that you also have an e-mail 18 distribution list; is that right? 19 A. That's correct. 20 Q. Okay. Now, is there anything that an 21 administrative staff person needs to do other than just 22 log into their account, pull up their distribution 23 list, and type in an e-mail? Is there anything else 24 they need to do? 25 A. Each user could also assign a password to 0011 01 their e-mail account, which is different than their 02 network access account. 03 Q. It would still be part of the network; it 04 would just require a password to access the account? 05 A. Correct. 06 Q. Okay. Now, once an e-mail was sent out, does 07 your office -- is your office responsible for storage 08 of the past sent e-mails? 09 A. My office is responsible for backup of our 10 entire network system. Our e-mail system is not 11 separate. It's part of our overall network operating 12 system. 13 Q. So your administrative e-mail system is just 14 part of your overall network system? 15 A. That's correct. 16 Q. And you back it up? 17 A. Yes. 18 Q. How often do you back it up? 19 A. On a daily basis. 20 Q. And then is that information stored? 21 A. We have a publicized backup procedure in our 22 technology plan. And it is stored on a rotation basis, 23 which is industry standard. 24 Q. What do you mean by stored on a rotation 25 basis? 0012 01 A. As an example, a daily tape is retained for 02 seven days. Monday's backup tape will become next 03 week's Monday's backup tape -- and Tuesday and 04 Wednesday and Thursday. 05 Q. For your whole system? 06 A. For our administrative system here at this 07 site. 08 Q. And what does that administrative system 09 include? 10 A. Our administrative servers. 11 Q. What type of information would be included on 12 the administrative servers? 13 A. That contains our e-mail system, as well as 14 our data file systems, some applications. 15 Q. Do you do any off-site storage of your 16 administrative system? 17 A. Yes. 18 Q. Where is that done? 19 A. Currently it's done in two locations. We have 20 a contract with One Safe Place. 21 Q. One Safe -- 22 A. Place. 23 Q. S-a-f-e? 24 A. Uh-huh. 25 Q. Place? 0013 01 A. And my senior network engineer has a copy that 02 he stores at his home. 03 Q. What is his name? 04 A. Dan Armstrong. 05 Q. Now, what do you send with respect to your 06 administrative system and your administrative 07 servers -- 08 A. Uh-huh. 09 Q. -- what do you send with respect to those 10 items over to One Safe Place? 11 A. Our AS400 backup goes to One Safe Place. The 12 remainder of our administrative servers goes with our 13 network engineer. 14 Q. It does what? 15 A. Goes with our network engineer. 16 Q. Goes? 17 A. Yes. 18 Q. How long have you been storing stuff off-site 19 with One Safe Place? 20 A. Since November 1977. 21 Q. Okay. And you said that the AS400 -- which is 22 a designation of a network server, isn't it? 23 A. Yes, it is. 24 Q. Is that a Compaq? 25 A. No, that's an IBM server. 0014 01 Q. IBM, okay. So it's an IBM-brand network 02 server. That backup for your administrative system has 03 been going to One Safe Place since November of 1977? 04 A. I'm sorry, 1997. I think did I say '77. That 05 was my mistake. 06 Q. I was wondering about that. Most people 07 didn't backup in the mid-'70s. 08 A. Not as often, no. 09 Q. So all of your administrative system backup 10 goes off-site to One Safe Place from your AS400; is 11 that right? 12 A. From the AS400, which is responsible for our 13 data used in Texas state reporting. 14 Q. Do your administrative e-mails go off-site? 15 A. Not to One Safe Place. They're part of our 16 administrative servers. 17 Q. Which goes to your engineer? 18 A. That's correct. 19 Q. How often -- or how long has that been backed 20 up with your network engineer? 21 A. That process we've been using since I arrived 22 here. 23 Q. Help me again on that. That was 19 -- 24 A. 1996. 25 Q. 1996. So administrative e-mails that are sent 0015 01 out would be backed up and then sent to your network 02 engineer's home system? 03 A. Only on the off-site. You asked if we kept 04 on-site back -- or off-site backups, and we do. But we 05 also keep the full set of on-site backups here. 06 Q. Now, describe for me what you mean by on-site 07 backups. 08 A. You had mentioned before our daily backup 09 routine, for example. Those tapes stay here on-site. 10 Q. Okay. How long do you keep those? 11 A. Daily backups are rotated every seven days. 12 Q. So they're only kept for seven days? 13 A. Weekly backups are rotated on a weekly basis. 14 Q. How about monthly? 15 A. Monthly backups are rotated on a monthly 16 basis. The monthly backups are what we send off-site, 17 as well as on-site. And then we have a single yearly 18 backup. 19 Q. Of all of your administrative servers? 20 A. That's correct. 21 Q. And that would pick up all of the e-mails that 22 were sent? 23 A. Not exactly. 24 Q. Why not? 25 A. Because the e-mail system has its own 0016 01 retention policy. An end-of-year backup will keep 02 everything in place that's on the system on the date 03 the yearly backup is made. 04 Q. So you're -- 05 A. The e-mail system itself removes items after a 06 storage period of 120 days. So a yearly backup will 07 not contain anything older than 120 days because it's 08 physically not there. 09 A user also has control of their documents. 10 And they may choose to delete those prior to when a 11 system would delete it. 12 Q. Okay. So someone who sends out an 13 administrative e-mail -- 14 A. Uh-huh. 15 Q. -- has the ability, once they have sent it, to 16 delete that e-mail from the system prior to the time 17 that your department picks up the backup? 18 A. Yes. 19 Q. Is that correct? 20 A. That is correct. 21 Q. And do you have any way of tracking what they 22 have deleted? 23 A. No. That record is not kept. 24 Q. So you don't know who has deleted something or 25 what they deleted or when they deleted it? 0017 01 A. That is true for the users. 02 Q. So an administrative employee could send an 03 e-mail out to other administrators and then later 04 decide that that wasn't a good idea and go in and 05 delete that from the system? 06 A. Yes. 07 Q. Can they delete it from the accounts of the 08 receivers? 09 A. Yes and no. 10 Q. Okay. Explain that, if you would. 11 A. It depends if the receiver -- if the receiver 12 has opened the message, then the answer is no. 13 Q. So let me give you an example. Let's say 14 Mr. A sends an e-mail to Mr. B. 15 A. Uh-huh. 16 Q. Mr. A later decides, within a few hours or 17 maybe a day later, that wasn't a good idea, I shouldn't 18 have said that. Mr. A can delete that e-mail from the 19 system and it's gone forever and nobody knows about it 20 unless Mr. B has opened it? 21 A. That's correct. 22 Q. What if Mr. B has opened the e-mail? How long 23 will it stay in the system? 24 A. As I mentioned before, if a user does not take 25 action on their own, the system is set up to delete on 0018 01 a 120-day time basis. 02 Q. So if Mr. B leaves that open and doesn't 03 delete it, then the system will delete it at 120 days? 04 A. That's correct. 05 Q. And you don't have any kind of backup to 06 determine if that e-mail was sent or not sent? 07 A. That would all be determined by when the 08 backup occurred in regard to the action of the 09 individual user. 10 Q. Let's take a look at Exhibit 63. The 11 exhibits are right in front of you. They're numbered 12 and they should be sequential. 13 A. In numerical order? 14 Q. Yes. 15 A. All right. 16 Q. Have you seen this e-mail before? 17 A. I've seen a copy of this, yes. 18 Q. When did you last see a copy of this? 19 A. I last saw a copy of this when it was faxed to 20 me the week of -- right around September 18th or 19th, 21 somewhere in that time frame. 22 Q. Of this year? 23 A. That's correct. 24 Q. Did you go back and do any kind of search in 25 any of your servers, either on-site or off-site, to see 0019 01 if you could find this e-mail? 02 A. Yes. 03 Q. Tell me what you did to search for this 04 e-mail. 05 A. With a date of 1998, it was necessary to go to 06 an end-of-year tape, since that's all that would have 07 been kept for something at this time. 08 So the scenario is that you use your 09 end-of-year backup, and you need to re-create the 10 network environment as it was at that point in time. 11 In other words, it can't be production. It had to be a 12 separate effort, if you would, on separate equipment to 13 get this scenario set back up in the environment. 14 And so the backup tape is then restored to a 15 server that's been configured to look like the network 16 environment was in December of 1998. 17 Q. Where did you find the 1998 yearly backup 18 tape? 19 A. The yearly backup tape was on-site. 20 Q. And what is that yearly backup tape -- what do 21 you call it? If somebody wanted to ask to see it, what 22 is it called? 23 A. I don't recall the exact labeling on the tape, 24 but it was probably something backup 1998 or system 25 backup 1998. 0020 01 Q. And does it backup all of your system or only 02 part of it? 03 A. The backup is for our administrative server 04 system. 05 Q. And that's from the AS400? 06 A. No, sir. That is from our administrative 07 server system here in this facility. 08 Q. Okay. And what type of tape was it? 09 A. I don't recall because you're right, we have 10 had different formats of tape. So I don't recall which 11 format this was. 12 Q. Who has custody of that tape now? 13 A. That tape is in our network support department 14 here in this building on this floor. 15 Q. Is it in a safe or a fireproof room? 16 A. Our on-site copy is in a locked cabinet in our 17 network engineer's area. 18 Q. So you went to the 1998 administrative server 19 system backup for the year. And that tape contains 20 that backup for the year? 21 A. That tape, which is called the yearly backup, 22 contains the information that was on the system at that 23 date when it was made. 24 Q. When was the date that that was made? 25 A. I believe it was December 5th of 1998. 0021 01 Q. So on December 5th of 1998, someone in your 02 department went in and backed up the administrative 03 server? 04 A. That's correct. 05 Q. For the whole year? 06 A. For all of the information contained on the 07 servers at that point in time. 08 Q. And what information was contained on the 09 servers? What type of information was contained on the 10 servers? 11 A. That would include our e-mail system, our data 12 file systems, and some applications. 13 Q. So unless an e-mail was deleted by someone, an 14 affirmative act to delete it, or unless it was deleted 15 under your program of 120 days, the e-mail should be on 16 that backup? 17 A. Correct. If the restoration process works, it 18 should be on the backup. 19 Q. And then you took this particular tape and 20 you searched -- and then what you said you did was you 21 put it on -- and I'm not technical, so I'm trying to 22 understand what you did. 23 A. That's okay. 24 Q. What did you do with the tape once you got it? 25 A. We built a new server so that it could 0022 01 re-create the environment of 1998 because, of course, 02 in our environment of 2000, it wouldn't operate. 03 Q. What do you mean by -- again, I'm not 04 technical, but you said re-create the environment. 05 What do you mean by that? 06 A. It took one of my network engineers 07 approximately six hours to configure a machine for the 08 task of looking at restoring this end-of-year backup. 09 Q. Who was the engineer that did that? 10 A. Dan Armstrong. 11 Q. And once you reconfigured the environment on a 12 different machine -- is that right? 13 A. That's correct. 14 Q. And then you put the tape in and downloaded it 15 to the hard drive of that machine. Were you able to 16 find e-mails -- administrative e-mails in 1998? 17 A. Yes, sir. 18 Q. Okay. Did you find the administrative e-mail 19 that's represented by Exhibit 63? 20 A. Yes, sir. 21 Q. What does that indicate to you? 22 A. Well, that e-mail was entered into the e-mail 23 system at that date and time. 24 Q. Does it indicate to you that Jim Davis 25 actually sent this e-mail, which is represented by 0023 01 Exhibit 63, to the central cluster principals? 02 A. The address, as it's stored, shows the sender 03 as Jim Davis. 04 Q. Do you confirm that in your search? 05 A. It shows the recipients as a group of central 06 cluster principals. 07 Q. Did you bring a copy of that today? 08 A. No, sir, I did not. 09 Q. Is the computer still configured, or has it 10 been deconfigured? 11 A. No, that's been dismantled -- 12 Q. Okay. 13 A. -- since the restoration occurred. 14 Q. Well, let me ask you this. 15 A. All right. 16 Q. As a representative of the District and 17 someone who's knowledgeable about all this, you would 18 confirm that Exhibit 63 is a true and accurate copy of 19 the e-mail sent by Jim Davis to all the central cluster 20 principals? 21 A. What I can confirm is that the content of this 22 exhibit is the same as the content of the e-mail that 23 the system shows was sent by a user by the name of Jim 24 Davis to recipients under the user name of central 25 cluster principals. 0024 01 Q. On or about Wednesday, August the 26th of 1998 02 at 2:48 p.m.? 03 A. That's the date that's entered into the 04 system. 05 Q. Okay. Now, as an assistant superintendent -- 06 is that your title? 07 A. That's correct. 08 Q. Okay. As assistant superintendent in charge 09 of technology -- 10 A. Uh-huh. 11 Q. -- does that tell you that Jim Davis actually 12 sent this memo represented by Exhibit No. 63 through 13 your system to the central cluster principals on or 14 about August the 26th? 15 A. I can tell you that the system, in its log, 16 shows that a user named Jim Davis -- 17 Q. Sent that? 18 A. Yes. 19 Q. Okay. At that time, did Jim Davis -- can you 20 tell us whether or not Jim Davis at that time had a 21 password on his account that would prohibit other 22 people from sending it and using his account? 23 A. I can tell you at this point that Jim Davis 24 did have a password on his account. That's as much as 25 I can comment on, though. 0025 01 Q. What do you think is the likelihood that 02 someone other than Jim Davis sent this memo represented 03 by Exhibit 63, given what you know about your e-mail 04 system? 05 A. I can't say with any certainty one way or the 06 other. In other words, is it impossible for someone 07 else to have done that? No, it's not impossible. Is 08 it likely? I can't put a percentage on the likely 09 part. 10 Q. Okay. So when someone in your system -- let's 11 go back to August of 1998. 12 A. Uh-huh. 13 Q. Using the administrative e-mail system in 14 August of 1998 -- 15 A. Uh-huh. 16 Q. -- if Mr. Davis wanted to send a message to a 17 distribution list of central cluster principals -- 18 A. Uh-huh. 19 Q. -- he would enter -- he would go into his 20 account; is that right? 21 A. That's correct. 22 Q. He would be the sender -- 23 A. Correct. 24 Q. -- under your system -- 25 A. Uh-huh. 0026 01 Q. -- and it would indicate in the memo, from Jim 02 Davis? 03 A. Uh-huh. 04 Q. Is that right? 05 A. That's correct. 06 Q. Okay. And then he would designate who the 07 memo was going to go to? 08 A. Correct. 09 Q. And you have -- typically, you do have 10 distribution lists where it goes to a group of people? 11 A. Yes. 12 Q. That's not unusual? 13 A. No. 14 Q. Okay. And in this particular case, you 15 confirmed that there was a central -- well, did you 16 confirm that it went to the central cluster principals? 17 A. Yes, I did confirm that. 18 Q. And did you confirm who it went to? 19 A. Yes, I did. 20 Q. Can you tell me who it went to? 21 A. I cannot recall all of the names, no, I'm 22 sorry. But in my review of the list of names, it was 23 the current group of central cluster principals. 24 Q. That currently work for the District? 25 A. Uh-huh. 0027 01 Q. Do you know who the central cluster principals 02 are? 03 A. I couldn't recite those for you now, no -- 04 the entire list. 05 Q. Do you know what schools were represented? 06 A. Again, I know the central cluster schools, 07 yes. 08 Q. Okay. What are the central cluster schools? 09 A. Are we looking at some in particular, because 10 I will miss portions of the list? 11 Q. Do the best you can. 12 A. Because there's 20 in the central cluster. 13 Q. You just do the best you can. 14 A. At the high school level we have Vines. 15 Q. I'm sorry? 16 A. We have Vines High School. 17 Q. Vines. 18 A. At the senior high school level, we have Plano 19 Senior High School. At the middle school level, at 20 that point, we would have Wilson, Haggard, and 21 Schimelpfenig. 22 Q. Okay. 23 A. And then at the elementary school level -- 24 I'll try to go from the south -- we'd have Aldridge, 25 Shepard, Sigler, Weatherford, Hughston. There's a 0028 01 longer list of elementary schools as we continue to go 02 a little further to the north. 03 Q. Okay. You confirmed that this memo from 04 Mr. Davis had been sent through your system to the 05 principals of all of these schools that are in the 06 central cluster? 07 A. Right. I confirmed that an e-mail message 08 sent by a user named Jim Davis was sent to a group of 09 central cluster principals. 10 Q. And you confirmed that the content of that 11 message is what is reflected on Exhibit 63? 12 A. The contents are the same. 13 Q. And you compared the e-mail that was on the 14 computer server with the fax that you received a few 15 days ago? 16 A. That's correct. 17 Q. And looked at the fax that was this 18 Exhibit 63 -- although it wasn't labeled 63 at that 19 time -- and looked at what you had on your system and 20 confirmed that the message was the same? 21 A. That's correct. 22 Q. What is your educational background, 23 Mr. Hirsch? 24 A. Starting with? 25 Q. College. 0029 01 A. College, B.A. degree from Saint John's 02 University. 03 Q. All right. 04 A. Master's degree from the University of 05 Minnesota. 06 Q. Okay. 07 A. Those are the degrees I've earned. 08 Q. What did you receive your master's in? 09 A. My master's was in mathematics education. 10 Q. And how about your bachelor's? 11 A. Mathematics. 12 Q. Where do you currently reside? 13 A. Street address? 14 Q. Yes. 15 A. 6756 Bastille Drive. 16 Q. T-i-l-l? 17 A. Yes, two l's. Plano. 18 Q. Plano, okay. And what is your date of birth? 19 A. June 5, 1953. 20 MR. BUNDREN: Okay. Let's take a short 21 break. 22 MR. ABERNATHY: Sure. 23 (Recess from 2:07 to 2:13 p.m.) 24 Q. Mr. Hirsch, I listened closely to what you 25 said and what I understand you to say. And the reason 0030 01 I'm asking you another question about this -- 02 A. All right. 03 Q. -- I want to explain why -- is that you 04 confirmed from your review of the 1998 administrative 05 server that an individual named Jim Davis sent 06 Exhibit 63 to the central cluster principals; is that 07 right? 08 A. Close. 09 Q. Okay. Tell me what -- 10 A. What I said was a user -- 11 Q. Named Jim Davis. 12 A. -- with the name of Jim Davis. 13 Q. Okay. That's what I thought you said. I 14 wasn't quite sure how you phrased it. 15 A. And there's a difference there. 16 Q. Who is that user named Jim Davis? 17 A. I would guess typically it would be Jim Davis. 18 Q. And who is Jim Davis? 19 A. At that point in time, Jim Davis was an 20 assistant superintendent. 21 Q. In charge of the central cluster? 22 A. That's correct. 23 Q. All right. The Jim Davis -- well, let me go 24 back. In August of 1998, was there more than one 25 individual named Jim Davis working for the school 0031 01 district that had an account -- an e-mail account? 02 A. That, I could not tell you for certain. 03 Q. The only Jim Davis that you knew in August of 04 1998 was the assistant superintendent Jim Davis? 05 A. The only Jim Davis that I had contact with in 06 the District at that point was the assistant 07 superintendent Jim Davis. 08 Q. Okay. And was he in charge of the central 09 cluster schools? 10 A. Yes, he was. 11 Q. At that time? 12 A. Yes, he was. 13 Q. Did you have any way in your review of the 14 District's network to confirm that the account from 15 which this e-mail came from was, in fact, owned -- or I 16 don't know if owned is the right word -- but that was 17 the personal account of the assistant superintendent 18 Jim Davis? Do you understand my question? 19 A. Yes, I do. And the system itself keeps track 20 of account names. And so what I can tell you is that 21 the message, as it was logged, came from an account 22 named for the user Jim Davis. 23 Q. And did you have more than one account named 24 Jim Davis in August of 1998? 25 A. That I don't know. 0032 01 Q. But you do know that Jim Davis, the assistant 02 superintendent at that time, had an e-mail account? 03 A. That's correct. 04 Q. And you do know that his account name was, 05 quote, Jim Davis? 06 A. That's correct also. 07 Q. You know that? 08 A. Yes. 09 Q. You can confirm that? 10 A. Yes, sir. 11 Q. Okay. Would it be likely in August of 1998 12 that you would have had two different accounts of the 13 same name, or do you have a system not to do that? 14 A. No. For example -- if I may give you an 15 example? 16 Q. Certainly. 17 A. As of today, we have two Jim Longs. 18 Q. Two Jim Longs? 19 A. Correct. 20 Q. How do you distinguish that then? 21 A. If you're not careful, they do on occasion get 22 each other's mail. We try to add another 23 distinguishing piece to the name, where we'll put the 24 name, parentheses, department. And we did need to 25 start that practice as we got some duplicate names. 0033 01 Q. Okay. 02 A. What I can't tell you right now, because I did 03 not look particularly for that, at that point in time 04 in the school district were there two staff employees 05 named Jim Davis. 06 Q. Okay. 07 A. If there were, they would have each had an 08 account. 09 Q. Would the names be the same? 10 A. Back in that time, I don't recall if our 11 practice was to put distinguishing marks out there or 12 if we relied on the individuals to check the 13 recipient's full address; in other words, Jim Long at 14 admin versus Jim Long at Plano Senior High School. I 15 didn't look for that, so I don't know the answer. 16 Q. As you sit here today, you can't recall any 17 other employee of the District having an account named 18 Jim Davis other than the assistant superintendent Jim 19 Davis who was responsible for the central cluster; is 20 that correct? 21 A. I don't recall myself having any other contact 22 with another employee named Jim Davis. 23 Q. Okay. In addition to the central cluster 24 principals that you confirmed were on the receipt of 25 this e-mail -- 0034 01 A. Yes. 02 Q. -- was the superintendent also on the receipt 03 of that e-mail? 04 A. I don't recall that, again, because I don't 05 recall the entire list. 06 Q. When you did your search -- 07 A. Yes. 08 Q. -- did you see who all it got sent to? 09 A. Yes. That was part of the record of the 10 e-mail. 11 Q. And you didn't keep the records or keep any 12 notes or anything indicating who it was received by? 13 A. I wasn't asked to look for that so, no, I -- 14 as I told you, I checked to see that the content was 15 the same. 16 Q. And confirmed that it was? 17 A. And then I looked at the recipient list, and I 18 saw that indeed it looked like the central cluster 19 group of principals, but I didn't individually go down 20 that list and try and check off, if you will, if 21 everyone was included or if someone was excluded. 22 Q. Could you tell when you looked, who actually 23 opened the e-mail? 24 A. That's contained in that record, yes. 25 Q. Could you tell which recipient opened it at 0035 01 which time? 02 A. That's also contained in the record. 03 Q. Okay. Do you have anything that would tell us 04 today what that indicated as to -- 05 A. I don't have that with me. 06 Q. Do you have it somewhere here in the building? 07 A. I probably have -- I probably have that 08 electronic copy archived, of the record. 09 Q. Okay. So you took that record from the -- 10 A. Right. 11 Q. -- 1998 server tape and electronically 12 archived that over -- 13 A. For this e-mail message, yes. 14 Q. For this particular e-mail message? 15 A. Uh-huh. 16 Q. And where is it archived? Where is that? 17 A. That would be in my file. 18 Q. On your server? 19 A. No, in my personal file. 20 Q. In your personal e-mail file or -- 21 A. Electronic. 22 Q. Electronic file? 23 A. Yeah, uh-huh. 24 Q. How difficult would it be to pull that up to 25 determine who actually was sent the message, who 0036 01 received the message, and when they opened it? 02 A. That -- that part, since it's been retrieved, 03 would not be difficult. 04 Q. How long would it take you to do that? 05 A. If everything goes right, just a matter of 06 minutes. 07 MR. BUNDREN: Could I ask that we take a 08 break so he can get that information and I can ask him 09 those questions? 10 MR. ABERNATHY: Is there anything else we 11 need to cover today besides that? 12 MR. BUNDREN: Let me ask one other 13 thing. That's good. 14 Q. What else would be contained within that 15 electronic archive that you've created, Mr. Hirsch? 16 A. It would be the two items, the mail and the 17 record that goes with the mail -- the record being the 18 sender and the recipients. 19 Q. And it would show the path? 20 A. It shows the recipients it was sent to -- 21 Q. Okay. 22 A. -- if it was opened; and if it were opened, at 23 what time. 24 Q. Okay. Now, I've dealt with electronic files 25 before. They're a little difficult to see if you don't 0037 01 have a computer. Can you print that out somewhere? 02 A. Yes, sir. 03 Q. Okay. Could you do that for us? Would that 04 be difficult? 05 A. It should not be difficult. 06 MR. BUNDREN: If we could take a break 07 and do that, then he can have the information to answer 08 the questions. 09 MR. ABERNATHY: Have we got anything 10 else to cover other than that? 11 MR. BUNDREN: No, I don't think so. 12 Q. That's all that's on that electronic file? 13 A. That's correct. 14 MR. BUNDREN: Okay. If you could do 15 that, we'll take a short break and let you do that. 16 MR. ABERNATHY: Would you be willing to 17 make three copies of it? That way, there's one that 18 he's going to want to mark, and then he can have a copy 19 and I can have a copy. Would that be okay with you? 20 MR. BUNDREN: Fine. 21 THE WITNESS: Just so I don't miss 22 anything, you would like a copy of the e-mail? 23 MR. ABERNATHY: Yes. 24 THE WITNESS: And then the recipient-type 25 record? 0038 01 MR. ABERNATHY: And there's usually a 02 list of -- 03 THE WITNESS: That's the recipients, 04 right. 05 MR. BUNDREN: What I'd like to get, if 06 you could, Mr. Hirsch, is a copy of the -- how big is 07 this file, this electronic file? 08 THE WITNESS: The files aren't large, but 09 they're in the proprietary format of the e-mail system. 10 MR. BUNDREN: What does that mean? 11 THE WITNESS: That means with GroupWise, 12 the file does you no good -- GroupWise being the 13 application that runs our e-mail system. 14 MR. KIRKE: Is that a trade name? 15 THE WITNESS: That is the producer -- 16 right. 17 MR. KIRKE: Trade name GroupWise? 18 THE WITNESS: It's a Novell product, yes. 19 MR. KIRKE: Okay, Novell. 20 MR. BUNDREN: If you could just print 21 out -- because I don't want to have to ask you this -- 22 just print out everything that's on that file and then 23 we can identify that. 24 MR. ABERNATHY: Is there anything else on 25 the file that relates to this case? 0039 01 THE WITNESS: No. It was the single 02 e-mail. 03 MR. ABERNATHY: Okay. I mean, I don't 04 want to -- 05 MR. BUNDREN: Yes. It should be -- if I 06 understand it, it's just a file that has this e-mail 07 and the information about this e-mail? 08 THE WITNESS: A separate document of the 09 record of recipients. 10 MR. BUNDREN: And nothing else? 11 THE WITNESS: Correct. 12 MR. BUNDREN: Okay. Let's go do that. 13 We'll go off the record. 14 (Recess from 2:23 to 2:29 p.m.) 15 (Exhibit No. 72 marked.) 16 Q. Mr. Hirsch, let me hand you what's been 17 marked as Exhibit 72. Would you tell us what this is, 18 please. 19 A. This is a copy of an e-mail record retrieved 20 from an end-of-year system backup tape from 1998. 21 Q. The first page of Exhibit 72, is that the 22 e-mail -- 23 A. That is correct. 24 Q. -- that we've been talking about? 25 A. That is correct. 0040 01 Q. Now, what is the second page? 02 A. The second page is what we call the record 03 that the system keeps of the e-mail message, and the 04 same dates and time and the recipients. It shows 05 whether it's actually been received by the campus post 06 office and then what the user has done with the 07 message. 08 Q. Okay. So there's a column that says 09 recipients? 10 A. Yes. 11 Q. The first one is Melody Burton. I see a 12 Roxanne Burleson, Sue Kirk. On the next page I see 13 Carol Johnson, Beverly Sellers. And then it indicates 14 when it was delivered, which appears to be within 15 minutes of when it was -- 16 A. It should be -- 17 Q. -- prepared? 18 A. -- fairly instantaneous in most cases for 19 delivery, yes. 20 Q. And then the column that says opened, that's 21 when the recipient actually opened it? 22 A. That's correct, sir. 23 Q. If you go to the third page of the exhibit, 24 there's a thing called Domain.Post Office. What is 25 that? 0041 01 A. I've got the wrong page. Where are you? 02 Q. This -- what is this? 03 A. Oh, I'm sorry. Each of our campuses has a 04 post office, which is how it keeps track of campus 05 staff. And so that's the name of the post office 06 contained on the server at the campus. In other words, 07 it has to be received at the campus, much as it has to 08 be sent from another location. So that would be the 09 campus designation. 10 Q. Can you tell from this exhibit the designation 11 of where the e-mail was initially created? 12 A. On the second page, there is a created by, and 13 that's the domain. 14 Q. And what does the phrase 15 MAIL01.ADMIN01:JDAVIS1, what does that mean? 16 A. Well, to me what it means is the name of the 17 post office server that it was sent from is named 18 MAIL01.ADMIN01. That's a name of an electronic device. 19 The :JDAVIS1 tells me that that's the network name of 20 the user. 21 Q. And what is the post office designation of 22 MAIL01.ADMIN01? What does that indicate? 23 A. Once again, that post -- that it would be the 24 server, the e-mail server name. The machines are all 25 named something, which typically corresponds to their 0042 01 physical location. 02 Q. So that would mean that that e-mail message 03 was created at a server with the name of 04 MAIL01.ADMIN01? 05 A. That's correct. 06 Q. Okay. And where in 1998 -- in August of 1998 07 was that server located? 08 A. That server would have been in this building. 09 Q. In the administration building of the Plano 10 Independent School District? 11 A. That's correct. 12 Q. Would that indicate to you that J. Davis or 13 Jim Davis sent that from a server here at the 14 administration building? 15 A. That information would tell us that the user 16 JDAVIS1 created a mail that was sent from that server. 17 Q. And that would be the central Plano 18 Independent School District office server here at the 19 headquarters? 20 A. That server is located in this building. 21 Q. Okay. Now, what does Mail Envelope Properties 22 mean? 23 A. Oh, that -- 24 Q. It's at the top of page 2. 25 A. Since you asked -- since you asked -- 0043 01 GroupWise, as a mail system, does not keep track of 02 individual mails when they're sent from one person to 03 another. It keeps track of only one copy to save 04 space. That is its hexadecimal pointer, so it knows on 05 every message what physical mail document it refers to. 06 In other words, if I send a message to you, the system 07 will only keep one copy of the message. 08 Q. Instead of 50 or 60? 09 A. Right. But you and I both have a pointer, 10 which is that hexadecimal value that tells the system 11 the physical message to locate. 12 Q. Now -- 13 A. And all systems are somewhat different in the 14 way they do that. 15 Q. And that's just your software that you're 16 using? 17 A. That's the GroupWise method, yes. 18 Q. And the GroupWise is a software program? 19 A. That's our e-mail software. 20 Q. The first time that you were asked to search 21 for this e-mail was a few weeks ago? 22 A. As far as -- as close as I can recall, it was 23 the week of September 18th and 19th. I forget what's 24 the Monday of that week. It was sometime in that week 25 when the request was. 0044 01 Q. Okay. Is it possible to run a search on the 02 same server -- excuse me, that's the wrong word. I 03 used the wrong word there. 04 Is it possible, for instance, to run a search 05 of your e-mail system for 1998 -- just like you did to 06 find this e-mail -- and to use words that would be 07 contained within the body of an e-mail message -- words 08 or phrases? 09 A. No. We have no capability to search the 10 contents of the text itself. 11 Q. If you downloaded the sender's file, in other 12 words, all memos sent by a particular address -- 13 A. Uh-huh. 14 Q. -- could you then search all memos sent by 15 that particular address by text? 16 A. No. We have no text searching capabilities in 17 the software. 18 Q. In any way? 19 A. We have no capability -- 20 Q. Okay. 21 A. -- to do that. 22 Q. Do you know if anyone else has the capability 23 to do that? 24 A. That would be a guess. I -- honestly, I've 25 never had a conversation with anyone who's had an 0045 01 e-mail system to go back and look at those kinds of 02 records in a textual context of the body of the 03 document, no. 04 Q. So when you searched for this one, you knew 05 the sender, the recipient, and the date? 06 A. Right. And the key components were the sender 07 and the date because, as you can tell in the documents, 08 that's how they're kept track of, by sender and date. 09 Q. Do you know of any -- because you're more 10 knowledgeable of this than I am -- do you know of any 11 company or service that can download e-mails like this 12 one into a file and then do a text search to find out, 13 for instance -- let me give you an example -- all 14 e-mails sent by administrative staff relating to 15 connected math? 16 A. I'm not aware of any firm that performs that 17 service. But, you know, in this day and age, who knows 18 what kind of services people can provide. We've never 19 had that in our own shop, and we've never needed to 20 avail ourselves of that service. 21 Q. And just so I understand, your software 22 program is called GroupWise? 23 A. That's correct. It's -- Novell is the 24 company. GroupWise is the software application. 25 Q. And what version of that are you using? 0046 01 A. Okay, currently we're using version 5.2. 02 Q. And that's for this year? 03 A. That's what we're currently using, yes. 04 Q. Okay. 05 A. That was also the version in place when this 06 e-mail was written. 07 Q. So how long have you been using version 5.2? 08 A. July of 1997 is when we converted. 09 Q. Is it possible in your system for you to 10 generate an ASCII file or an ASCII flat file from the 11 archive? 12 A. From a restoration, it would be on an 13 individual message basis. To give you an example, we 14 generate on the order of 200 to 300,000 e-mail messages 15 in any given month. 16 On an individual file basis, you can deal with 17 it in a textual manner from an extraction point. But 18 there is no routine or algorithm that allows us to, 19 say, take all of your mail messages and convert them. 20 There's nothing built in, from an application 21 standpoint. It's on a message-by-message basis. 22 Q. Could you take all messages sent by a 23 particular person in a given month or a given year and 24 download those messages to an ASCII or an ASCII flat 25 file? 0047 01 A. Whatever messages are -- again, if we remember 02 how we talked earlier -- whatever ones are physically 03 there. 04 Q. Right. 05 A. Those could be taken individually and copied 06 to an ASCII file. 07 Q. So you could go into your archive system -- 08 you could take, for instance, all messages that -- just 09 to use an example -- that Jim Davis was the creator of, 10 and you could download just his messages into an ASCII 11 file? 12 A. Yes. Although, again, what would happen is 13 the entire -- the entire system would be re-created. 14 And the isolation would occur on a one-to-one basis. 15 You would have a list of hundreds of thousands of 16 messages. And you would have to physically get those 17 messages. 18 In other words, there's not a way for me to 19 put in an individual user and say, give me all the 20 messages of this user. 21 Q. From your -- 22 A. From the software. 23 Q. From your software? 24 A. Right. 25 Q. So you can't -- well, how can you pinpoint 0048 01 those messages? Is it by date? 02 A. Well, by date and by sender. 03 Q. All right. 04 A. And so as I mentioned before, that's what made 05 this one findable, if you will. There was a date to 06 look for and there was a sender to look for. 07 Q. If I asked you to give -- just as an example. 08 I'm not making a request here. I'm just using an 09 example. If I ask you to give me all of the e-mails 10 that Jim Davis created -- 11 A. Uh-huh. 12 Q. -- in 1998 that are available -- 13 A. Uh-huh. 14 Q. -- and to give those to me in an ASCII file 15 format, could you do that? 16 A. Physically and technically, that could be done 17 with a significant amount of time and effort. 18 Q. What would you have to do to do that? 19 A. A server would have to be configured again. 20 Q. Like you did for this request? 21 A. Like we did previous to this. The backup tape 22 would have to be restored onto that server. And a 23 person would then physically have to go into the system 24 as the user and look at the sent mail and pull those 25 out. 0049 01 Q. And then create a file from that? 02 A. Well, on a one at a time basis create files, 03 yes. 04 Q. And could you do a search in your archive for 05 all that Jim Davis has sent? 06 A. You cannot do -- let me see. I can't answer 07 that definitively. I don't believe you can do a 08 search. 09 Could you go in as -- no, I don't believe you 10 can do a search like that. I think it's a list that 11 you have to go down and look at -- view, if you will, 12 and recognize. 13 Q. Okay. And then it would just give you a list 14 of every e-mail that Jim Davis -- as in my example, 15 every e-mail that Jim Davis sent, it would give you a 16 list of that? 17 A. If you went in and selected those. 18 Q. Okay. Then you could take that list and move 19 it over into an ASCII file? 20 A. You can take the mail messages and move them 21 to really any type of electronic file. 22 Q. And once they got into an ASCII file, are you 23 then able to search by text? 24 A. We don't have the utility to do that. 25 Q. Do you know that that exists in the 0050 01 marketplace? 02 A. Again, I don't have that application. Whether 03 that exists or not is a whole other question. 04 Q. Do you know GREP? 05 A. No. I'm sorry, I don't. 06 Q. G-R-E-P? 07 A. No. 08 Q. Never heard of that? 09 A. No. 10 MR. BUNDREN: Okay. That's all I have. 11 Thanks. 12 (Deposition concluded at 2:45 p.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25 0051 01 CHANGES AND SIGNATURE 02 PAGE LINE CHANGE REASON 03 ------------------------------------------------------ 04 ------------------------------------------------------ 05 ------------------------------------------------------ 06 ------------------------------------------------------ 07 ------------------------------------------------------ 08 ------------------------------------------------------ 09 ------------------------------------------------------ 10 ------------------------------------------------------ 11 ------------------------------------------------------ 12 ------------------------------------------------------ 13 ------------------------------------------------------ 14 ------------------------------------------------------ 15 ------------------------------------------------------ 16 ------------------------------------------------------ 17 ------------------------------------------------------ 18 ------------------------------------------------------ 19 ------------------------------------------------------ 20 ------------------------------------------------------ 21 ------------------------------------------------------ 22 ------------------------------------------------------ 23 ------------------------------------------------------ 24 ------------------------------------------------------ 25 ------------------------------------------------------ 0052 01 I, JIM HIRSCH, have read the foregoing deposition 02 and hereby affix my signature that same is true and 03 correct, except as noted above. 04 05 06 07 ---------------------------- 08 JIM HIRSCH 09 10 THE STATE OF --------------------- ) 11 COUNTY OF ------------------------ ) 12 12 13 Before me, -----------------------------------, 13 personally appeared JIM HIRSCH, known to me (or proved 14 to me under oath or through -------------------) 14 (description of identity card or other document) to be 15 the person whose name is subscribed to the foregoing 15 instrument and acknowledged to me that they executed 16 the same for purposes and consideration therein 16 expressed. 17 17 Given under my hand and seal of office this 18 18 --------- day of ---------------------, -------. 19 19 20 20 ---------------------------- 21 NOTARY PUBLIC IN AND FOR 21 THE STATE OF ---------------- 22 22 23 23 24 24 25 25 0053 01 STATE OF TEXAS * 02 COUNTY OF DALLAS * 03 This is to certify that I, Sunny Schaen, Certified 04 Shorthand Reporter in and for the State of Texas, 05 certify that the foregoing deposition of JIM HIRSCH, 06 was reported stenographically by me at the time and 07 place indicated, said witness having been placed under 08 oath by me, and that the deposition is a true record of 09 the testimony given by the witness. 10 I further certify that I am neither counsel for nor 11 related to any party in this cause and am not 12 financially interested in its outcome. 13 Given under my hand of office on this the 8th day 14 of October, 2000. 15 16 16 17 ---------------------------- 17 Sunny Schaen, Texas CSR 3638 18 Expiration Date: 12/31/01 18 19 JANIS ROGERS & ASSOCIATES 19 1545 West Mockingbird Lane 20 Suite 1032 20 Dallas, Texas 75235 21 Tel. No. 214/631-2655 21 22 22 23 23 Taxable cost of original charged to Plaintiffs 24 Celia J. Chiu, et al., 24 Atty: Mr. William Charles Bundren: $---------------- 25 25