The 2006 amendments to the Federal Rules of Civil procedure included a new legally defined term: ESI, which stands for "Electronically Stored Information". The legal / litigation world now considers the discoverability of electronically stored information such as emails to be commonplace.
What is ESI in Legal Terms? Definition of Electronically Stored Information
Electronically stored information or ESI is broadly defined as any data or documents that are created or stored on electronic media.
All potentially relevant data sources need to be disclosed by the producing party in order to meet disclosure obligations. Forms of ESI can originate from a wide variety of sources, and attorneys need to be diligent and ask the right questions to ensure obligations are met.
ESI Specific Meaning - Data Sources Could Include:
- Email (PST)
- Any Digital Documents - Word Documents, Spreadsheets, videos, image files, business contracts created using dedicated software
- Data from a custodian's desktop
- Data from a company server
- Data from a hard drive
- Data from cloud applications
- Mobile metadata or messages originating from a cell phone
- Data from an Internet of things (IoT) device
- Digital scans or other electronic recreations of physical documents
As you can see, electronically stored information covers a lot of ground. With the help of eDiscovery technology, lawyers can streamline ESI collection processes, reduce the amount of time spent searching through records, support their legal case, and protect themselves against misconduct claims.
ESI and the 2006 FRCP Amendments
Rule 34 of the Federal Rules of Civil Procedure (FRCP)
- A party may serve on any other party a request within the scope of Rule 26(b): (Rule 26 b allows parties to define scope of the investigation based on certain parameters)
- Rule 34 permits the requesting party to inspect, copy, test, or sample the following items
- Any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images
- These documents could be stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form
As part of the amended Rule 34 a, the category of 'electronically stored information' should also permit the discovery rules to keep pace with developments in information technology for many years into the future.
Digital Technology Growth & Litigation
With digital technology and data growing every day, eDiscovery has become a significant and evolving challenge associated with modern day litigation. Conducting eDiscovery may involve software tools and services for identifying, collecting, producing, and preserving digital files and data that are relevant to the case. Without the right systems and processes in place, attorneys could spend an enormous amount of time handing eDiscovery responsibilities, even with the help of a clerk.Between emails, digital files, text messages, and other new forms of electronically stored information (ESI), lawyers will have their hands full.
Each phase of the eDiscovery process is important, but today we want to focus on collecting electronically stored information and how law firms can go about handling those tasks more effectively. It’s a critical step, so be sure to have an ironclad system and policy for collecting ESI.
Options For ESI Collection
Law firms have a few different ways to approach ESI collection. For instance they could seek help by hiring a forensic services expert. If they can manage to take care of ESI collection and technology processes internally, that’s probably the most cost-effective option. Using an eDiscovery solution can help speed this process along, requiring fewer billable hours to be spent on tedious work.
There are a few important factors to keep in mind when collecting electronically stored information. For one, attorneys, law clerks or other stakeholders assigned to ESI collection should always consider the proportionality of the task at hand. If the opposing counsel’s data production requests are excessive and impractical, there’s no obligation to necessarily agree to those terms. Any electronic discovery request should be reasonable to meet within the resources and time available to the legal team.
How you collect electronically stored information is critical as well. Law firms need to have a concrete audit trail for any data storage, collection, or preservation efforts they conduct. In the event that anyone questions the integrity of the ESI or the manner in which it was collected, there will be an unimpeachable account of all ESI collection activity.
From start to finish, eDiscovery can be a complex and time-consuming process. But it’s an essential part of any legal case, often dictating how a lawsuit or trial will unfold and which side will have the more compelling argument. ESI collection deserves your full attention and commitment. With eDiscovery software, the entire process becomes much easier to manage while adhering to high standards for data accuracy and preservation.
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