Electronically stored information (ESI) refers to data that is created, modified, transmitted, and stored in digital form. This term was legally defined in 2006 as part of revisions made to the Federal Rules of Civil Procedure (FRCP) to facilitate electronic discovery and litigation related to electronic records. ESI can encompass various types of information, including structured or unstructured data, written, visual, or audio information.
ESI can be found in a variety of electronic sources such as computer hard drives, solid state drives, network servers, USB drives, social media platforms, Wi-Fi connected devices like smartphones and tablets, and Internet of Things (IoT) devices like smartwatches and smart appliances. These digital sources house a wealth of information that can be relevant in legal cases and e-discovery processes.
The United States FRCP was amended in December 2006 to provide a legal definition of ESI. Rule 34(a)(1) specifically defined ESI as “any type of information that is stored electronically,” including documents, emails, and information stored in any medium. This broad definition was intentionally left open-ended to include all computer-based information types available at the time and to accommodate future technological advancements. Rule 34 serves as a foundation for changes in the FRCP’s e-discovery rules.
Under the FRCP, one party (Party A) can request another party (Party B) to inspect, copy, test, or sample designated documents or ESI stored by Party B in any medium. Party B must respond to the discovery request by developing and producing a response. Since the 2006 amendments, courts in the United States have the authority to oversee routine e-discovery processes during litigation cases. The amendments also specify early disclosure and discussion requirements for counsel, address inadvertent waivers of privilege, and provide protection against information spoliation sanctions.
FRCP Rule 34 allows Party A to specify the form in which Party B must produce ESI, depending on its utility for Party A. This can range from paper printouts to electronic documents like PDF files or TIFF images. Party B must produce ESI in a form that is either ordinarily maintained or reasonably usable. If Party B objects to the form request or if Party A does not specify a particular form of production, Party B must state the form(s) it intends to use.
ESI and e-discovery go hand in hand. E-discovery is a crucial component of many legal cases, and the FRCP outlines the processes for requesting and providing information during e-discovery. Organizations must properly manage ESI, especially privileged information, to comply with the FRCP and avoid penalties. Proper ESI management includes identifying and securely storing relevant information, indexing and labeling it for easy retrieval, optimizing capture and storage processes, assigning clear roles and responsibilities, implementing audit plans, and implementing controls to prevent accidental or malicious deletion.
A comprehensive ESI management program can save organizations from scrambling to find requested information during litigation. It ensures smooth e-discovery within the mandatory timeline and allows organizations to export and deliver ESI in the requested format. E-discovery software can assist with ESI management, preserving data accuracy, and simplifying various aspects of the e-discovery process, including identification, collection, processing, review, production, and presentation.
In conclusion, electronically stored information (ESI) plays a critical role in e-discovery and litigation related to electronic records. The legally-defined term encompasses all forms of data stored electronically and can be retrieved from various digital sources. Adhering to the United States Federal Rules of Civil Procedure (FRCP) ensures proper management of ESI during e-discovery processes. Implementing effective ESI management programs and utilizing e-discovery software can streamline the e-discovery process and facilitate compliance with legal requirements.