The major amendment to the Federal Rules of Civil Procedure in 2005 included specific rules for the first time governing electronically stored information (ESI). The growing prevalence of ESI requires that inside counsel today understand the potential forms of corporate data that are discoverable in litigation. The explosion of ESI and the relatively new focus on its preservation and production have dramatically driven discovery costs higher.
All ESI shares one trait: storage in a form that is electronically accessible, as opposed to paper, microfilm, microfiche, etc. Electronically accessible media include hard drives in laptops, desktops and servers; DVDs and CDs; backup storage in the form of optical discloses, backup tapes and archived servers; and other computers. ESI encompasses electronic messaging systems such as Microsoft Exchange and Lotus Notes. Typically these forms of ESI are managed and controlled by a company’s IT department, and data preserved (and destroyed) according to a written data retention policy. But what about all the sources of ESI “managed” by your employees?