E-Discovery and Electronically Stored Information (ESI)

Electronic discovery (e-discovery) refers to the exchange of electronically stored information (ESI) as part of the discovery process in civil litigation. The basic legal framework governing a litigant's duty to disclose (and right to receive) ESI is, in many ways, no different from the legal framework governing the disclosure of paper documents. 

However, e-discovery poses several challenges that are not as prevalent with traditional "paper" discovery. For example, in today's business environment, the volume of discoverable ESI typically dwarfs the volume of discoverable paper documents. Additionally, figuring out where all potentially relevant ESI resides and devising a strategy to efficiently identify and collect this information requires technological expertise that is not required for paper discovery. This Practice Note Overview addresses the key issues that an individual or organizational party or non-party (collectively referred to in this Overview as a "responding party") and their counsel must consider to ensure that they comply with their legal duties to preserve and produce relevant ESI in litigation. 

MANAGING AN ORGANIZATION'S INFORMATION IN THE ORDINARY COURSE OF BUSINESS

Organizations routinely identify, retain, and dispose of records in the ordinary course of business. It is important for organizations to implement a records management program that:

• Directs employees how to handle the organization's information.
• Provides a systematic approach to record preservation and deletion.
  

For more information about records retention, see Records Management Toolkit (2-520-1257). 

While all authentication methods recognized by the Federal Rules of Evidence (FRE) are available to authenticate electronically stored information (ESI), some methods apply to ESI more easily than others. This Chart provides a snapshot of the methods that counsel most often use to authenticate common types of ESI. 

AUTHENTICATE EMAIL AND TEXT MESSAGES

To authenticate an email or text message, counsel may rely on:

• The testimony of a witness with personal knowledge that the message is what counsel claims it is (FRE 901(b)(1)). This witness may be:
  •  the sender (or author) of the message (see Kremerman v. Open Source Steel, LLC, 2018 WL 5785441, at *8 (W.D. Wash. Nov. 5, 2018); Dunn v. Hunting Energy Services, 2017 WL 6527429, at *8 (S.D.Tex. Dec. 21, 2017)); or
  • an individual who observed the sender writing the message see U.S. v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012)).
• A comparison of the message with other authenticated evidence, such as another message that:
  
  • resembles the proffered message in a relevant manner; and 
  • the court has found to be authentic. 
  • (FRE 901(b)(3); see U.S. v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006).)
• Circumstantial evidence regarding the message’s:
  • appearance, such as the presence of the purported sender’s email address on the message;
  • content, such as information in the message known to a small group of people that includes the purported sender;
  • internal patterns, such as the use of the nicknames or other abbreviations in the message; or
  • other distinctive characteristics.
• (FRE 901(b)(4); see Arce v. Louisiana, 2017 WL 6033516, at *2 (E.D.La. Dec. 5, 2017) and Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 546 (D. Md. 2007); but see United States v. Johns, 2018 WL 6703465, at *5 (6th Cir. 2018) (holding that a party’s arguments about distinctive characteristics and circumstantial evidence addressed the authenticity of the emails’ content, but did not adequately address concerns about the source of the emails).)

For more information on these authentication methods, see Practice Note, E-Discovery: Authenticating Electronically Stored Information: Ways to Authenticate ESI (W-002-6960).