Electronically stored information (“ESI”) is ubiquitous and most people and companies are utilizing paperless documents in some form (i.e., e-mails, text messages, IMs). The many forms of ESI coupled with the introduction of varying data sources such as smartphones, cloud storage, iPads, and tablets, has dramatically expanded the available potential sources of discovery in a civil litigation. To obtain this information in discovery, however, it is important that the requesting attorneys know not only what to ask for, but how to ask for it. And so, when you next start to draft a document demand, consider the following issues.
Where is the data stored?
Before asking for “all documents,” it is important to consider the types of paperless documents that may exist and the devices that an individual or corporation might use. In addition to traditional hard storage devices like servers and computers, it is important to consider cloud accounts, personal smartphones and tablets, social media accounts, removable media (i.e., USB drives), and wearable technology as potential repositories of responsive information. It is important to understand and delineate exactly where you are asking the responding party to search for the information, and be prepared to justify why you are making such a request.
As with most litigations, the early stages of discovery often mean the attorney does not necessarily know what ESI even exists, much less where it is stored. In this situation, it may be useful to use interrogatories for the purpose of identifying who is in possession of potentially relevant ESI and where and how that ESI is maintained.
Be certain to use proper terminology.
Properly defining the terms in a Request for Production for ESI is critically important. This is especially important where the responding party and/or its counsel do not have sophisticated knowledge of technological terminology, data types, and preservation methods. If in doubt about terminology or how to craft a proper ESI discovery request, consider partnering with an Certified E-Discovery Specialist (CEDS). We can ensure a properly crafted request and advise on how to authenticate the ESI you seek. Also, consider consulting one of the many secondary sources on the market that define and illustrate various critical principles. In other words, don’t just fake fluency because failing to ask for metadata such as time stamps, revision and editing history, and authors, for example, could be catastrophic. If this is important to an issue in the case, then the scope of the metadata to be searched and produced should be in the definitions and instructions. Relatedly, if the data you are seeking is sensitive to alteration, then the definitions and instructions should instruct a party on preserving, extracting and producing such data.
A carefully crafted discovery request should also include temporal and subject matter parameters to narrow the electronic data the producing party is obligated to search for.
In what format should the production be made?
Additionally, e-discovery does not mean securing a CD-ROM with electronic copies of documents in “.pdf” format. ESI should be produced in a format that is searchable, useable and accessible. (See, “In What Format Should I Make My Production? And, Does Format Matter?”). Indeed, it will save your client money and promote efficiencies of time if you specify a production format that empowers you to sort, review and use the discovery produced.
ESI is an important method of discovery in a case, and can provide valuable information. Knowing what to look for, where to look, and how to request the information you seek can be the difference in accessing critical information, and lacking important details to litigate effectively your case.
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