PRACTICAL LAW RESOURCE PREVIEWS
E-Discovery and Electronically Stored Information (ESI)
Preview resources on Electronically Stored Information (ESI) content
E-Discovery in the US
E-Discovery in the US: Overview
A Practice Note addressing the key issues organizations, individuals, and their counsel must consider to ensure that they comply with their legal duty to produce electronically stored information (ESI) in litigation. This Note specifically addresses parties' and non-parties' ESI preservation and production obligations and the consequences of failing to meet those duties.
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).
Preserving Electronically Stored Information
Practical Tips for preserving ESI
A Practice Note discussing the key issues companies should consider to ensure that they comply with their obligations to preserve electronically stored information (ESI) in federal civil litigation.
Electronic discovery (e-discovery) is the process of identifying, collecting, processing, reviewing, and producing electronically stored information (ESI) in litigation. Most discovery requests in US civil litigation seek ESI. Given the broad scope of discovery permitted by US courts, any type of ESI (for example, emails, word processing documents, images, web pages, instant messages, text messages, audio-visual recordings, voicemail messages, and social media postings) may be discoverable. Litigants may store discoverable ESI in various locations, such as on databases, network servers, computer systems, desktop and laptop computers, cell phones, tablets, the cloud, and backup and archival media such as tapes, disks, and drives.
Organizations that operate or do business in the US must be mindful of e-discovery rules due to the liberal amount of discovery afforded to litigants and the harsh sanctions that courts may impose on parties that fail to take reasonable steps to preserve relevant evidence. This Note both:
- Discusses the key issues organizations should consider to ensure that they comply with their obligations to preserve and produce ESI in federal civil litigation.
- Proposes ways for organizations to meet their e-discovery obligations in a cost-efficient manner.
Common law and certain statutes, such as the Sarbanes-Oxley Act, require an organization to preserve ESI and hard copy documents when it reasonably anticipates litigation or a government investigation (see, for example, Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)). Once an organization has a duty to preserve, the organization must:
- Suspend any routine document destruction under their document retention policies that may otherwise cause the loss of information relevant to the lawsuit or investigation.
- Issue a litigation hold to its employees advising them of their duty to preserve documents (including ESI) and other materials that may be relevant to a lawsuit or investigation.
To view a sample litigation hold notice, see Standard Document, Litigation Hold Notice (0-501-1545).
Determining when to issue a litigation hold is a fact-specific inquiry. Sometimes it is clear cut, such as when an organization:
- Receives a subpoena for documents.
- Receives a summons or complaint in which it is named as a party.
- Initiates (or seriously considers initiating) a lawsuit.
However, if an organization has not been served with a summons or subpoena, it may be more difficult to determine if it has a duty to preserve documents and ESI. In these cases, courts often hold that a duty to preserve arises once the organization receives a credible threat that it will become involved in a lawsuit or an investigation. For example, an organization may have a duty to preserve if it receives a nonfrivolous cease and desist letter from an adversary’s lawyer. In contrast, unsubstantiated rumors of possible litigation, or a patently frivolous threat from an unrepresented individual, might not trigger an organization’s preservation duty. The ultimate consideration is whether the party reasonably evaluated all the facts and circumstances it knew at the time it decided whether to issue a litigation hold.
For additional discussion of when a party has a duty to preserve, see Practice Note, Reasonable Anticipation of Litigation under FRCP 37(e): Triggers and Limits (W-008-2708). For more information on when and how to preserve relevant information and issue a litigation hold notice, see Practice Note, Implementing a Litigation Hold (8-502-9481).
Authenticating Common Types of ESI
E-Discovery: authenticating common types of ESI chart
A Chart with tips on how to authenticate electronically stored information (ESI) under Federal Rules of Evidence 201(b), 901(b), and 902. This Chart identifies the methods counsel most frequently use to authenticate common types of ESI.
|Emails and Text Messages||Chat Room or Instant messages||Social Media Postings||Websites||YouTube, Voicemail, and Other Audio and Video Recordings||Databases|
|FRE 901(b)(1) (witness with personal knowledge)||See Authenticate Email and Text Messages||See Authenticate Chat Room or Instant messages (IM) Communications||See Authenticate Social Media Postings||See Authenticate Websites||See Establish That a Recording is Unaltered||See Authenticate Databases|
|FRE 901(b)(3) (comparison with other authenticated evidence)||See Authenticate Email and Text Messages||See Authenticate YouTube, Voicemail, and Other Audio and Video Recordings|
|FRE 901(b)(4) (circumstantial evidence)||See Authenticate Email and Text Messages||See Authenticate Chat Room or Instant messages (IM) Communications||See Authenticate Social Media Postings||See Authenticate Websites||See Authenticate YouTube, Voicemail, and Other Audio and Video Recordings|
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).