Electronically stored information (ESI) refers to “any type of information that is created, used, and stored in digital form and accessible by digital means.”
While this definition may seem succinct and self explanatory, in today’s rapidly expanding digital landscape, the interpretation of ESI is becoming more nebulous. Encompassing all data and digital documents, ESI can exist in any media format, be that a flash drive, physical hard drive, on-premises server, or cloud storage.
ESI is a recognized and formal legal term, and is intrinsically linked to the eDiscovery process. In fact, from emails and websites to messaging and database records, ESI is exactly what eDiscovery seeks to locate. As the world of business becomes ever more digitized, the amount (and variety) of ESI produced is rapidly increasing.
Read on to learn more about ESI within the context of your organization, future challenges you may encounter, as well as some ways to make life easier with regard to your ESI responsibilities.
The Importance of ESI
Amendments to the Federal Rules of Civil Procedure (FRCP) in 2006 saw ESI adopted as a new, legally defined term. This recognition reflected its increasing importance within the legal landscape.
As a result of the huge amount of ESI companies now generate daily, eDiscovery forms a critical (and increasingly central) component of modern legal cases. The volume of ESI produced by enterprises is predicted to rise by 65% per organization in coming years, and with litigation also increasing, it’s not hard to see why the correct management of ESI is so essential.
The EDRM model gives a clear overview of a widely adopted eDiscovery process. Through this model, you can see how ESI is sought and retrieved in relation to its use within the legal process; a nine-step process is used to ensure that all ESI gathered is comprehensive, reliable, and admissible.
Once litigation is on the horizon, businesses have an obligation to make documents and other ESI available when it's requested—so it’s important to know exactly what you should be preserving, and how. As the number of legal cases reliant on evidence produced by eDiscovery continues to skyrocket, it’s essential that enterprises have a good handle on how they capture and store the ESI they produce.
What Data Is Considered ESI?
As businesses become ever more digitized, it’s not just the amount of ESI that’s on the rise. Formats and sources of ESI that need to be recorded are also becoming more diverse. In the modern age, ESI covers far more than company emails and PDF documents.
Modern communication continues to evolve. The way that we collaborate and share information digitally spans a huge range of platforms, and any of this ESI could be requested as part of an eDiscovery case.
ESI is increasingly being stored on the servers of platform hosts like Amazon, Google, Slack, Facebook, and countless others.
As the global pandemic has necessitated a shift to remote working (and a huge rise in the use of digital collaboration tools), companies need to be increasingly aware of the many different sources of ESI that they are responsible for. The huge rise in use of tools such as Slack, Zoom, and Microsoft Teams has meant a steep increase in the amount and variety of ESI that companies are generating.
As remote working increases, the lines between work and private life risk becoming blurred. This means an increase in the amount of professional interactions being conducted on unsanctioned platforms. As a result, it’s important for businesses to be mindful of their policies and responsibilities around the ESI generated by text messages and tools like WhatsApp.
Sources of ESI
As any type of ESI could be requested as the result of an eDiscovery investigation, it’s important for businesses to be in confident control of all the sources they might be responsible for.
To help you get a better picture, here is a list of some common sources that ESI comes from:
- Team collaboration tools like Slack and Microsoft Teams
- Text messages
- Voice and Meeting recordings (Zoom, Google Meet, etc.)
- Social media accounts
- Documents (Word documents, Excel spreadsheets, etc.)
- Computer hard drives
- Server networks
- Cloud-based storage
Having a clear overview of all sources of ESI is essential for any organization’s legal team. Whether structured or unstructured data, ESI should be well managed and easy to gain access to, so that in the event of a legal case, the eDiscovery process runs smoothly and efficiently.
Is Your ESI Litigation Ready?
When it comes to ESI, it’s wise to “hope for the best, but plan for the worst.” FRCP 34 requires that, if requested as the result of litigation, ESI must be produced within 30 days. By having a clear strategy for your business’s ESI preservation and organization, you don’t risk having to scramble to pinpoint data as the result of a request to produce.
Of course, when it comes to being ligation ready, it’s not just a case of being able to locate the requested ESI in a timely fashion. You’ll also need to ensure that it’s been stored, exported, and delivered in the correct manner.
FRCP 34 states that ESI should be produced in the “form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Essentially, shared data must be provided in an easily readable, understandable format.
While TIFF or PDF formats are typically deployed, for the best results (and speediest resolutions) it’s best to provide information in its native format, along with any associated metadata. This is where an enterprise-grade archiving solution such as Pagefreezer comes in handy—enabling real-time collection and preservation of ESI, so that all information is placed into easily comprehensible context.
How to Ensure Your Electronically Stored Information Is Ready
Making sure your employees are well-educated with regard to maintaining information is the first step to ensuring your ESI is well-prepped for eDiscovery. Train your employees on how to store their documentation correctly, so it’s easy to trace. Also, make sure they’re aware that anything they create or communicate on company computers is subject to preservation and could be used as evidence in a legal case.
ESI should also have a clear audit trail for litigation. In other words, whoever is organizing the information for litigation should find an obvious chain of creation and possession. That way, there’s no room for questioning the validity of the data presented.
Be sure that you have a plan in place should a legal hold of ESI be necessary. In these instances, ESI needs to be completely ring-fenced, preventing it from being deleted as a regular part of retention scheduling.
Along with keeping employees aware of ESI obligations, legal teams should put plans in place for retaining all digital information with a legal hold. Legal teams should have a clear understanding of the larger organization's retention policies and also know how various data sources can be accessed to preserve content for litigation.
Using Pagefreezer to Store and Maintain ESI
Pagefreezer enables the automated, real-time capture and storage of all your ESI. Once up and running, all data is captured and stored in its native format, providing an easily searchable, perfectly presented record.
This means that, should eDiscovery become necessary, locating the exact ESI you require will be a quick and stress-free process. Save time and costly expert assistance, and enjoy the peace of mind that comes from knowing you’re fully prepared for any legal matter.
All ESI recorded by Pagefreezer is stored in a manner that preserves associated metadata, meaning its validity as evidence will be watertight.
Want to learn more? Download our comprehensive guide that discusses how legal teams can generate self-authenticating evidence under the Federal Rules of Evidence 902(13) and (14)FRE 902(13) and (14).