What is electronically stored information, 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. ESI is the core data type that powers eDiscovery 101 and nearly all modern litigation workflows.
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. This access enables legal teams to identify, preserve, and analyze information in a defensible manner.
- Without it, there would be no eDiscovery. eDiscovery is the electronic version of the discovery process for litigation, in which ESI is primarily used. Understanding this relationship is a key concept in any eDiscovery 101 overview.
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.The breadth of ESI sources continues to expand as technology evolves, increasing the scope of eDiscovery 101 considerations.
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 electronically stored information, 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. Metadata is a critical component of eDiscovery 101 because it often provides context beyond the visible content itself.
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 electronically stored information 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.This obligation, often referred to as the duty to preserve, is a fundamental principle taught in eDiscovery 101.
There are rules that are set in place in order for electronically stored information 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. Compliance with the FRCP is essential to defensible eDiscovery 101 practices and court admissibility.
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 electronically stored information goes through when it’s called in for litigation.The EDRM framework is commonly referenced in eDiscovery 101 training and court discussions.
The six steps that ESI typically go through are information governance, identification, preservation, collection, processing, review, analysis, production, and presentation.These steps provide a structured roadmap for managing ESI throughout the litigation lifecycle.
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.Strong information governance reduces risk and is a foundational topic within eDiscovery 101.
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 electronically stored information must be identified. Once that’s discovered, it moves directly into the third and fourth steps: preservation. Accurate identification helps limit scope, control costs, and avoid over-collection.
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 electronically stored information is important to ensure that it and its metadata doesn’t become spoliated during the eDiscovery/litigation process.Spoliation prevention is a critical legal risk covered extensively in eDiscovery 101.
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. Technology-assisted workflows are now standard practice in eDiscovery 101 environments.
Finally, the last two steps in the eDiscovery process that electronically stored information must go through is production and presentation. This is when it is produced in an acceptable way to be presented in court as evidence. Formatting, accuracy, and chain of custody are critical considerations at this stage.
Despite these steps, however, electronically stored information 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.Early case assessment is often introduced in eDiscovery 101 as a cost-saving and strategy-shaping tool.
Though electronically stored information 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.Managing privilege and risk is a recurring challenge emphasized in eDiscovery 101 training.
Who needs to know about ESI?
There isn’t a specific person that should know about electronically stored information. 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!Digital awareness helps reduce unintended legal exposure in an increasingly connected world.
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