What is ESI and why is it important?
The basic definition of electronically stored information, or ESI, is various information that has been designed and stored in a digital form. It’s vitally important for two reasons:
- ESI is important because it allows eDiscovery vendors to have access to any digital data that may end up as evidence during litigation.
- Without it, there would be no eDiscovery. eDiscovery is the electronic version of the discovery process for litigation, in which ESI is primarily used.
And what’s discovery? That’s when each party of a case exchanges information that is strictly relevant to the case that they’re involved in. There are many types of ESI, as mentioned in one of our past blogs, and some of these types include the cloud, social media, data from apps, emails, text messages, hard drives, servers, voicemails, etc.
Essentially, anything and everything digital can be thought of as ESI. It’s constantly being created, stored in various places, shared to various people, and deleted (though, not always permanently). This blog could be considered ESI, taking into account that this is an electronic document stored on a platform with metadata that is attached to the document that can provide a forensic analyst when this was created and how frequently it’s been edited.
How is ESI used?
To put it flatly, ESI is used within litigation and can be presented in court as evidence, should a judge decide that it’s necessary to have. Thus, there does not need to be a formal statement saying that certain ESI is going to be collected. As soon as there is anticipation of litigation, all ESI and other evidence that may be relevant to a case must be seized and preserved in order to keep it to its most original form.
There are rules that are set in place in order for ESI to be used properly. These rules were set up by the Federal Rules of Civil Procedure (FRCP). Among these rules it states that counsel needs to discuss the scope of the eDiscovery process and decide which ESI should be searched for and used; it is required that both parties must have reasonable ESI requests; it allows for judges to sanction parties for not providing relevant ESI in court; and it allows for clawback agreements to be reached in case privileged documents were discovered. (More about that below). These rules are set in place so that there are not only guidelines, but that there are no surprises between the parties when the evidence is brought to court.
How does ESI affect eDiscovery?
The eDiscovery process generally follows an industry accepted lifecycle known as the EDRM (Electronic Discovery Reference Model). This model (which can be seen here) lists the basic steps that ESI goes through when it’s called in for litigation.
The six steps that ESI typically go through are information governance, identification, preservation, collection, processing, review, analysis, production, and presentation.
Information governance, is ultimately a set of policies and procedures that are put into place that manage a company’s information. If ESI is to be collected from a business, it is important to understand how and where a company may store their documents. There’s a possibility that they could be lost or scattered, and there’s a possibility that they can be neatly stored in folders on servers or hard drives. But that’s where information governance comes in.
The second step, identification, is understanding what’s relevant to the case. Prior to this step, attorneys should have already met and agreed upon what was relevant. Now, they’ve been given key information from this business, and the relevant ESI must be identified. Once that’s discovered, it moves directly into the third and fourth steps: preservation.
These two steps, for the most part, go hand in hand. As the eDiscovery professional preserves the ESI, he or she is also collecting it (and vice versa). There are several different ways to preserve ESI, though the main method is by submitting a legal hold. Preserving ESI is important to ensure that it and its metadata doesn’t become spoliated during the eDiscovery/litigation process.
Once the ESI has been preserved and collected, it must be processed prior to attorney review. This is typically done by an eDiscovery software, like RelativityOne. The ESI is then reviewed & analyzed by an attorney for privilege and relevance. Relevancy includes content, context, patterns, and people involved.
Finally, the last two steps in the eDiscovery process that ESI must go through is production and presentation. This is when it is produced in an acceptable way to be presented in court as evidence.
Despite these steps, however, ESI can go far beyond what these basic steps are. For example, if ESI is needed on the fly, it might have to be discovered by an early case assessment (ECA) workflow. Depending on the investigation, ECA may answer various questions that help the eDiscovery professionals find the relevant ESI earlier in the analysis phase.
Though ESI is extremely important and is used throughout the entire eDiscovery process, there are issues that can occur. Because ESI is obviously all digital, there are many errors that can occur. ESI files can be altered, lost, corrupted, or even deleted, regardless of whether it has already been preserved. Another issue with ESI is that it could be privileged. Privileged documents can, will, and must remain confidential to that specific party. If that document is produced, then a clawback agreement must be reached prior to producing ESI. The parties acknowledge that these documents were privileged, and that they won’t be used against that party.
Who needs to know about ESI?
There isn’t a specific person that should know about ESI. In reality, everyone should at least be aware of it. As mentioned earlier, everything is essentially considered as ESI, and there doesn’t need to be a warning for your ESI to be preserved and used in a case. Always be aware of what you’re doing online!
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