In the context of litigation, any information that is stored in an electronic medium and may be retrieved and reviewed by the parties (see National Conference of Commissioners on Uniform State Laws, Uniform Rules Relating to Discovery of Electronically Stored Information, Rule 1(2)-(3)). In federal practice, the Federal Rules of Civil Procedure (FRCP) broadly define ESI as writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations (FRCP 34(a)). Many state courts have either adopted the FRCP's definition of ESI or developed their own similarly broad definitions.
Common examples of ESI include:
E-mails and their attachments.
Text and instant messages.
Word processing documents.
Metadata about a particular document, such as the author, the date it was written and the date it was last modified.
ESI may be retrieved from several sources, including:
Computer hard drives.
Company network servers.
Thumb (USB) drives.
Social media websites, such as Facebook, Twitter and LinkedIn.
Adequately and efficiently preserving, collecting and producing ESI can be challenging for companies involved in civil litigation or a government investigation. A party's failure to preserve and produce relevant ESI may lead to monetary and other sanctions, including contempt citations, adverse inference jury instructions and dismissal of the party's claims or defenses.
For more information on these topics, as well as tips on handling and preserving ESI, see the Practice Notes, Standard Documents and Checklists in the E-Discovery Toolkit (www.practicallaw.com/8-503-1078).