E-Disc Law Blog

Bow Tie Law's Blog wrote Keep on Trucking: Data Productions or Summaries, an analysis of a recent court decision finding that Rule 34 does not require a party to produce summaries upon request.

Electronic Discovery Law recently posted about a case in which "Inhibited Ability to Participate Meaningfully in Electronic Discovery" Results in Reduction of Rate of Recoverable Attorney's Fees.

Ride The Lightning recently posted Much Ado About Nothing? Computer Forensics and the Melendez-Diaz Case which found that allowing a forensics lab to present a certificate of its findings to the court without producing an analyst for cross examination violated a defendant's Sixth Amendment Right.

"ESI" is an acronym for Electronically Stored Information. 

Download FRCP 34 FRCP 34 uses the term ESI but intentionally does not attempt to limit what is actually included in the definition.  The committe notes to FRCP 34 state "The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. Rule 34(a)(1) is expansive and includes any type of information that is stored electronically."

So the question stands, what exactly is ESI?

ESI is ever changing and often in places people do not think about.  Everyone understands that emails, word processing documents, excel files and the like fall within the definition.  But case law and evolving types of technology have created a variety of other sources of ESI.

For instance, voicemail and text messages are considered ESI.  Images stored on a camera or data held on a thumb drive constitue ESI.  Information on your Blackberry, Iphone, and SIM card is ESI.  Records of entry into key card accessed locations is ESI. 

One court has held that information stored in RAM memory on a computer, if even for a split second, is within the realm of potentially discoverable ESI. The reason? Because it is information that is stored in an electronic format, and according to that court, the amount of time it spends in that format is irrelevant.