Electronically Stored Information – Part 1

All businesses deal with Electronically Stored Information (ESI). It consists of documents that are kept in a paperless rather than a paper format. Therefore, it can consist of, well, nearly anything such as bills, receipts, contracts, correspondence, orders, internal memos (e-mails), payroll records, tax records, and so on. For various reasons, you may be required to reproduce and share information. The requirement may come from a customer, the IRS or, from someone who is suing you. It is the latter circumstance that has made ESI so prominent.

Regardless what a lawsuit may be about, each party to the suit has rights of discovery, a right to see information held by the other party that is considered relevant to the dispute. Typically the information may be for an extended period, such as months or even years. The parameters that control the discovery process are found in a set of legal rules called the Federal Rules of Civil Procedure (FRCP).

As recently as a few years ago, the discovery process handled electronically stored data along the same lines as traditionally stored data. However, it quickly became obvious that electronic or digital data is a far more complex creature than non-digital data. Therefore, rather than relying on regular rules of discovery, new and separate rules are evolving on E-discovery and they are radically different.

Electronic communication has taken the place of various other modes of contact. By the very nature of computers, this information never, truly, is ever destroyed. Even when information is “deleted”, the only change is that its access has been moved from an active to an inactive access status. This is much like the case of a library book having its catalog card destroyed, but the book is not taken off the shelf. It can’t be looked up in a regular manner, but it can be found if one knows where to look.

Requests for information during litigation have created issues that were never contemplated by the non-digital information world. In the past, an entity that had a document handling/retention/destruction system could manage (as well as explain) what happened with its information. No legal consequence was likely if paper information that seemed routine was destroyed after, say, five to ten years of storage. However, digital information can become inaccessible, but not destroyed.

Please see parts two and three of this discussion regarding how business handle data and how ESI is affected regarding litigation.

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