Key facts about electronically stored information and ediscovery

ESI: you’ve seen the acronym. But what exactly qualifies as ESI? And how do you manage it properly to ensure you meet your ediscovery, compliance and litigation response obligations?

Electronically stored information (ESI) is any information that is created or stored electronically. Rule 34 of the Federal Rules of Civil Procedure (FRCP) doesn’t specify all types of ESI but notes that it “include[es] writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations.” The list of possible types of ESI grows by the day, as new technologies are created and new types of data are generated.

When it comes to corporate ediscovery, ESI includes (but is not limited to) the following types of information:

  • Electronic communications, including emails, text messages and instant messages and their attachments
  • Documents, including word processing documents, text files, spreadsheets, slide decks and PDFs
  • Database information
  • Social media profiles, posts, messages and other information
  • Data from mobile or computer applications
  • Images, photos and videos
  • Sound recordings, including voicemails
  • Data from a smart device, such as a smartwatch, smartphone, smart appliance, personal assistant or any Wi-Fi-enabled device.

In short, practically all data and information that you encounter in the corporate world that is not printed is likely to be ESI.

Where is ESI found?
ESI can be found on your laptop, desktop, smartphone, cloud-based application, corporate shared directory, internal server, voicemail system and removable data storage devices — basically anywhere electronic data can be accessed, viewed, downloaded, or saved.

How is ESI managed for ediscovery?
In corporate ediscovery, clear FRCP guidelines regulate the treatment of ESI. Any information that may be relevant to litigation, whether it’s a physical item or document or electronically stored data, must be preserved, collected, analyzed, and shared with opposing counsel or the requesting party within a specific timeframe.

FRCP 34 requires that, during litigation, parties must produce ESI within 30 days of a request. The rule also notes that ESI should be produced in the “form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. This means that shared data must be in a format that is easy for the requesting party to read and understand. Many organizations have traditionally shared data in a TIFF or PDF format, but producing ESI in its native format, along with any metadata, is generally preferred.

There is an exception, though: FRCP 26(b)(2)(B) allows that ESI from sources that are “not reasonably accessible because of undue burden or cost” need not be produced. Use this exception at your peril — your opponent could challenge your position about what’s inaccessible, and the court just might take its side.

What happens if you don’t preserve ESI that you should have? This is considered spoliation, and it can lead to substantial sanctions, up to and including dismissal in particularly egregious cases.

Is your ESI litigation-ready?
Knowing all of this can help you master your ESI and be prepared for possible litigation. First, create and maintain data maps so that you know what ESI you have and where to find it. Lastly, always be ready to issue a legal hold and put data custodians on notice that they need to preserve their ESI. That way, in the event that you anticipate litigation, you are set up for success.

Glossary definition

Electronically stored information, or ESI, is any information that is created or stored electronically. Rule 34 of the FRCP says ESI “include[es] writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations.”

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