ESI is short for “electronically stored information.” ESI is used to define any documents or data created and/or stored in electronic form on a computer or other device. As technology is increasingly used by people and businesses, ESI has become a significant part of commercial litigation and can often determine the outcome of a legal matter. Any ESI can be discovered during a business lawsuit and serve as essential evidence in a case.
What Data Sources Does ESI Include?
As digital technology and electronic data expand, the landscape of ESI continues to evolve. ESI can encompass a wide range of electronic data stored and created on computers, tablets, USB drives, workstations, cell phones, handheld devices, email systems, external media, network servers, and email folders (including archives, drafts, trash, and sent bins). It can include, and is not limited to, these types of data and documents:
- Text messages
- Instant messages
- Attachments to emails, texts, and messages
- Word processing documents
- Sound recordings and video
- Images and photographs
- Charts and graphs
- Website activity and history
- Voice mails
- Information on social media sites
- Computer programming information
For litigation, ESI does not include just the data — it also includes metadata, which must be properly preserved and kept. Metadata is defined as the data created by an electronic application embedded in the file. Metadata moves along with the file when copied. Metadata is “data about data” and exists within all digital items stored on any physical device.
How is ESI Used in Commercial Litigation?
Both federal and state law have rules that govern ESI and set forth the guidelines for discovery in litigation. All forms of ESI are discoverable in a lawsuit and must be preserved to prevent inadvertent or intentional spoliation. E-discovery is highly technical and often requires sifting through substantial data to retrieve evidence that will be useful for trial purposes. Due to the costs and time that can be associated with ESI discovery, ESI must be proportionate with the potential benefits it can bring. The amount in controversy, the nature of the dispute, and the importance of the materials to resolving the case must all be considered when seeking electronically stored information.
The duty to preserve ESI is derived from case law and begins not when a lawsuit has been begun — it also applies when litigation is reasonably foreseeable. Although the duty to preserve attaches regardless, a party seeking electronic data from the other should issue a litigation hold letter. This communication advises a party of their preservation duty and specifies that they must ensure all relevant electronic information is kept. Critically, a litigation hold letter can help to prevent the destruction, alteration, and manipulation of evidence while preserving the party’s right to access the information.
Preservation failures can result in serious consequences and severe sanctions. These ramifications can ultimately be avoided by taking the proper measures and following the protocol.
Contact an Experienced Commercial Litigation Attorney
ESI in commercial litigation can be complex and it’s vital to have a skilled attorney by your side who can help you navigate the ESI discovery process and all aspects of your legal case. Brinen & Associates is committed to providing reliable representation to corporate owners for a wide variety of business law matters and is adept at handling matters pertaining to electronically stored information. Call (212) 330-8151 or send us a message to learn how our New York Business Law attorneys can help.