Electronic Discovery Guide
In this section, you can learn about electronically stored information. Litigation attorneys often refer to electronically stored information as “ESI.”
You will learn what attorneys should know about electronically stored information to advise their clients before litigation occurs and to ensure effective advocacy in litigation without being sanctioned for improper electronic discovery of electronically stored information.
The sections here are offered as a quick primer into the process of handling electronically stored information before and during litigation.
The sections here are generally presented in chronological order, starting with before there is a threat of litigation and ending with trial. During each stage of the litigation continuum, attorneys and companies must proceed carefully as they handle ESI and process electronic discovery.
The sections here present the minimum requirements you must follow when dealing with ESI and electronic discovery. These sections also present “best practices” for handling ESI and electronic discovery.
Introduction to ESI
Electronically stored information (ESI) is essentially just computer data. Technically, “data” relates to all computer data and “ESI” relates only to information that humans could recognize.
ESI becomes an issue in litigation because some ESI is difficult to process under traditional discovery rules.
Traditional discovery rules are easy to apply when the ESI only involves hundreds or thousands of documents. But when hundreds-of-thousands or millions of documents are involved, traditional rules of discovery must adapt.
To be clear, the traditional principles of discovery can still be applied, but the rules must be adapted to allow technology to review and filter irrelevant information in the way people used to filter documents when processing a Request for Production of Documents.
However, the Federal Rules of Civil Procedure did not expressly allow for attorneys to rely on computers to scan information in the place of an attorney.
Fortunately, the rules have changed. A number of provisions in the Federal Rules of Civil Procedure have been updated. These rule changes were prompted in part by the efforts of the Sedona Conference. As a result, ESI case law has been developing the ESI doctrines, providing examples for us to follow.
Electronic Discovery Stages
Electronic discovery has a number of important stages. These are not arbitrary stages. Rather, these stages are created by electronic discovery rules. In particular, these stages each involve a set of rights and responsibilities for the parties involved in litigation.
Stage 1, ESI Planning, is the entire period from the time a business comes into existence until it has reason to believe it is under the threat of litigation.
Stage 2, Threat of Litigation, is the period after a party receives a threat of litigation or has reason to believe that specific litigation is forthcoming. This period ends once litigation commences.
Stage 3, Discovery, is the period between the commencement of litigation until trial. The discovery deadline is normally before trial, but for purposes of our electronic discovery discussions, the Discovery period includes the period between the discovery deadline and trail for convenience sake.
Stage 4, Trial, starts on the first day of trial.
