If you started practicing law this century, then you probably have no idea how little electronic data existed before the Internet. Don’t worry, I don’t either; I’m far too young. But electronically stored information (ESI) was much simpler, as most things were, and typically consisted of scanned images of original documents – totaling in the single-digit gigabytes.
When e-mail became more sophisticated, archiving was a standard practice. Instant messages (IMs) weren’t off the hook either; when retrieving conversations became a reality, those also became discoverable.
And when we started walking around with miniature computers in our pockets, single-digit gigs in e‑discovery became a lot less common. Mobile devices are discoverable under the Federal Rules of Civil Procedure, Rule 34(a)(1)(A), which states that ESI includes “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.”
Due to all our avenues of communication, e-mails might seem like fairly old news, but they are actually more relevant than ever. Think back to your first e-mail address – way back to the AOL days. You might have received 10 e-mails in a week. Now, it’s likely that you receive that in 20 minutes.
Growing e-mail volumes can create challenges for e-discovery.
When we receive an e-mail, that e-mail can reside in ten places, and in e-discovery, the preservation, collection, and processing steps may require us to identify all those locations, preserve the data, and process it in an efficient and inexpensive manner.
For example, let’s say, from your laptop, you send an e-mail to coworkers working on a case. Five recipients. Where does that e-mail exist once you hit send? Your outbox and their inboxes, right? Right. But also wrong. It’s stored on your laptop hard drive. You have a default set to cache e-mails on local drives as well, so it syncs up with your office desktop and now lives on that hard drive. Don’t pretend you don’t access your e-mail on your smart phone; it’s now linked to that. And your tablet. Oh yeah, and the laptop hard drives, desktop hard drives, smart phones, and tablets of all five recipients.
You might also have a backup utility to ensure preservation of e-mail data, so that e-mail will also be stored in those six backup locations (your sent box and their five inboxes).
It will be very difficult to ever get rid of that e-mail, so you’d better hope it was a good one.
You might think that there’s no reason to collect ESI from each of these locations, but data retention policies will guide that. Your firm may have a policy to only retain e-mails for 6 months. But if the more than 20 potential locations for that e-mail don’t all follow the policy, then the data will need to be a part of the e-discovery process.
Due to the rapid expansion of e-mail volume and, in turn, ESI, discovery is now producing terabytes of information, which is equal to 1,024 gigabytes. Here’s a visual: a gigabyte would equal a truck full of paper and a terabyte would equal the amount of paper produced from 50,000 trees (http://www.sdsdiscovery.com/resources/data-conversions/).
The amount of data seems like it couldn’t possibly increase anymore, but it hasn’t and won’t stop growing, especially because we’re all e-mailing more than ever.
Rule 34 first recognized data compilations as discoverable in an amendment in 1970, but was only recently amended in 2006 to be more broad, probably to cover inevitable future electronics. Advisory Committee Notes from July 2008 clarify that “discovery of electronically stored information is permitted regardless of the medium in which the information is stored or the method by which it is retrieved.”
So, in the grand scheme of things, e-discovery is still very new. And, we’ve merely scratched the surface of the actual process, but there are a lot of important steps and legal ramifications. Dealing with the complexities of the data in today’s world is very challenging and the tasks that intertwine with e‑discovery can be underestimated by attorneys and corporate legal teams, so it’s best to leave it up to the experts.
If you liked this blog you might also be interested in reading: Employee Emails Used for Business Purposes are Off-Limits (in this case at least)
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