What Is Electronically Stored Information and How Does It Differ from Conventional Information?

EDiscovery of electronically stored information (ESI) is now commonplace and is used in most transactions and communications. ESI includes e-mails, webpages, word pro­cessing files, and databases stored in the memory of computers, magnetic disks (such as computer hard drives and floppy disks), optical disks (such as DVDs and CDs), and flash memory (such as “thumb” or “flash” drives), according to Managing Discovery of Electronic Information: A Pocket Guide for Judges published by the Federal Judicial Center in 2007.  EDiscovery can be more involved and complicated than is discovery involving paper documents, though when parties and judges both are knowledgeable of potential complications; the process will likely progress smoother.

Electronically stored information is different from conventional paper information in a few key ways, according to Managing Discovery of Electronic Information: A Pocket Guide for Judges published by the Federal Judicial Center in 2007. The first is volume. There is generally a greater amount of ESI than of paper documents, and ESI can be stored in many separate locations. It is less common for paper documents to be kept or stored in multiple places. Further, due to email, a mainstream form of communication, the sheer volume of electronic information will generally far exceed paper communication or documents. Additionally, where paper documents are generally found in their final version, ESI can reveal multiple drafts and changes made to documents throughout the process. ESI is also dynamic in nature, as it is possible for computer systems to delete and overwrite the data initially stored. Where paper information could be damaged or destroyed, the perceived ease of destroying electronic data is greater. The destruction of electronically stored information is a concern for parties that will need to be addressed at the time the initial complaint is made, or at a minimum at the Rule 26(f) meet and confer. By specifying the information that is desired upfront, there is a greater likelihood that the ESI will not be deleted, as a freeze on data is commonly instituted.

Another aspect of ESI, which is not found in paper documents, is hidden information, such as metadata and embedded data. Metadata provides information about the file or document, such as the author and the creation or alteration dates. Metadata can also show what changes were made to the document or file. Embedded data is data that is contained in a document, but that may be hidden, such as formulas or computations used in a spreadsheet, if the spreadsheet is saved as a portable document format (PDF). The spreadsheet would be of little use without the embedded formulas or computations, and thus this data would be crucial. Electronically stored information can be largely dependent on system that created it, if it comes from a database or a particular program. When data or information is extracted from a particular database or program, it may not make sense or work outside of its program. This must also be considered by the parties when they file the initial complaint regarding information discovery or at the Rule 26(f) meet and confer so they can overcome this and ensure the electronically stored data will work effectively.

Finally, the last key difference between electronically stored information and paper documents is in destruction of the information. A paper file can be destroyed via shredding or fire or water damage. However, contrary to common perception, deleting an electronic file does not mean that it is actually deleted. The electronic file or information can still be stored on the hard drive unless it has been overwritten. Alternatively, the electronic file or information can be retrieved from other computers, or from archival backup sources used for disaster recovery.

EDiscovery of electronically stored information can be more difficult due to the differences in retrieval of information sources. However, when all parties are aware of the possible complications and are able to specifically articulate where they seek data from and how they will need the data presented, many of the complications can be avoided. It is critical to be prepared upfront in order to state what each party requests and aims to receive through EDiscovery. Being specific about the narrow categories required for electronic data discovery will help throughout the process. Additionally, establishing litigation holds before filing a complaint, or immediately after, is useful to ensuring that the least issues will be encountered throughout the discovery process. With careful planning and knowledge on how best to approach recovery of electronically stored information, the discovery process will go smoothly and your case will progress appropriately.