Electronically stored information (ESI) has prompted a wholesale change in legal culture because information technology and telecommunications have rapidly increased the volume of potentially relevant material leading to the legal profession and courts needing to find new ways to efficiently conduct the discovery process.
In this information age documentation relating to a case is not simply stored in manila folders and filing cabinets, but it is stored electronically in various forms and in a range of (virtual) locations. ESI is data that is stored on an electronic medium, usually a computer or server, and which is accessed through some form of computer program. For example it includes an email, database, Word document, PowerPoint presentation or spreadsheet. ESI by its nature is voluminous as it is easily duplicated. It has replaced the telephone, postal service, face-to-face meetings and even conversations. It can be difficult (although not impossible) to delete. It gives rise to metadata or data about data. ESI is also dynamic; the information can change with time or through the routine operations of the information technology environment, and frequently is incomprehensible when separated from the system that created it.
The volume of ESI is particularly significant for discovery purposes as traditionally the cost of finding information, reviewing it for relevance and examining it for privilege is directly related to the number of documents. The importance of ESI may be illustrated by research that estimated that worldwide email traffic will total 247 billion messages per day in 2009 and in 2013, this figure will almost double to 507 billion messages per day. However, in 2009, about 81% of all email traffic was spam.
Beyond increased volume, ESI can cause many other issues which also increase cost and delay, such as determining the location of ESI, sorting responsive ESI from irrelevant ESI, seeking to retrieve ESI that may have been lost by deletion, overwriting, or recycling. In addition, there is a concern with being able to preserve legal professional privilege that may be strewn amongst vast amounts of documentation. Furthermore, beyond the office, social media such as Facebook and Twitter have created additional avenues for the creation of "documents" which may need to be considered in discovery searches.
There are a few ways in which issues with regards to ESI can be minimised, and this article will consider case management, the pre-discovery conference, and the deposition as potential tools to this end, in addition to discussing in further detail the problems foreshadowed above. These different approaches to discovery allow for a better response to the unique problems of ESI and may be the path to smooth sailing through the oceans of discovery documents.
Computer Law | Courts | Cyberspace Law | Human Rights Law | Intellectual Property | Law | Litigation
Date of this Version
Michael Legg and Lara Dopson, "Discovery in the Information Age-The Interaction of ESI, Cloud Computing and Social Media with Discovery, Depositions and Privilege" (March 2012). University of New South Wales Faculty of Law Research Series 2012. Working Paper 11.