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Most people think of electronic mail, word processing documents, or spreadsheets. But electronically stored information (ESI) is much more than that. The federal courts were the driving force behind the development of electronic discovery. The Federal Rules of Civil Procedure were amended in December 2006 to address the subject, after a five-year effort by the Advisory Committee on the federal rules. Initially, there was a movement to restrict the definition of ESI to forms that could be rendered as closely as possible to paper documents. However, a flexible definition was ultimately adopted, one that would not become obsolete in the face of technological advances. This definition was incorporated into federal Rule 34(a):
writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations-stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.
Types of ESI
- Instant messaging. If an organization is keeping logs of its text messages, it can be required to preserve them for possible production in a lawsuit.4
- Cell phone images.
- Voicemail. Increasingly, voicemail messages are stored as digital files. Although difficult to search and generally retained for short periods, they fall within the Rule 34(a) definition, and could become the subject of electronic discovery.
- Metadata. Metadata, or data that describes other documents.
- Information stored in RAM (random access memory).
- Deleted files. When the delete key is pressed, a computer file is actually only marked for deletion, and may be recoverable.
- Backup tapes. In many cases, backup tapes (box on facing page) may be the only source of data for files which are no longer present on the system. Tape rotation policies may have to be suspended to make sure such data is preserved.
- Personal digital assistants
- Flash drives
- Web pages
- Computer databases
- MP3 players