WHAT IS “ELECTRONICALLY STORED INFORMATION”?

Written on April 29, 2008 – 8:33 pm | by admin |

By Emily Sheldrick and Arin Dunn
Dunn & Sheldrick, PS

MARCH, 2007
Technophobes beware!  After five years of study by the Advisory Committee on Civil Rules, several important revisions to the Federal Rules of Civil Procedure (“FRCP”) went into effect starting December 1, 2006.  These recent amendments are primarily focused on the discovery and production of “electronically stored information”.  Coupled with a series of recent cases, the new rules demonstrate a growing sophistication within the legal community to address fundamental changes presented by the digital age.  Simply put, paper-based and electronic evidence are treated very differently and subject to their own set of rules for the production, discovery, and ultimately, the admissibility of this information.
WHAT IS “ELECTRONICALLY STORED INFORMATION”?

The term “electronically stored information” is not specifically defined in the FRCP.  However, it is understood to mean any information created, manipulated, communicated, stored, and best utilized in digital format, requiring the use of computer hardware and software.  Among other things, “electronically stored information” includes all computer hard drives, electronic documents, databases, emails, back-up tapes, Voice Over Internet Protocol (“VoIP”), databases, instant messaging, digital images, servers, and digital audiovisual recordings.  In addition, “electronically stored information” can be found on numerous types of devices, including cellular telephones, PDAs, cameras, laptops, desktop computers, pagers, and voicemail systems.

Electronically stored information is distinguished from “conventional” media, such as paper, photos, analog recordings, and microfilm, because of the way in which it is communicated, changed, created, stored, and deleted by computer systems.  For example, when an email message is “sent” it may be reproduced at multiple locations on computers around the world and may also be replicated several times on both the sender and receipt’s computer hard drives as well.  While duplication tends to preserve evidence, it also produces a huge volume of information, far larger than that found on conventional media.

ACTIVE JUDICIAL MANAGEMENT OF ELECTRONIC DISCOVERY.

Since computers are now the primary methods by which we communicate, computers now typically hold the most important evidence in many cases.  In recognition of this trend, a number of judges have changed their approaches to civil procedure matters well before the mandatory adoption of the new FRCP rules.  Since the 1980s, judges have significantly expanded their roles to actively manage electronic discovery matters and reduce the massive costs frequently associated with electronic discovery in a number of cases.  Without such management, new powerful methods for obtaining valuable electronic evidence are simply lost.  Thus, the revised FRCP provides a framework to assist the legal community in managing such issues.

Under the new rules, judges are now required to have a familiarity with the technical aspects of electronic discovery and a willingness to actively apply them.  Attorneys are now forced to learn the nuances of electronically stored information in order to adequately and competently represent their clients.  The new rules also have implications far beyond the courtroom.  For example, if a business fails to adopt a proper policy and procedure regarding the destruction of electronic information it may result in serious legal problems at a later juncture.  Many businesses have not kept pace with these developments. According to a recent article in Computerworld, “few corporations are prepared for the new federal rules” on electronic discovery.  Fisher, Sharon, “Survey: Companies not prepared for new e-discovery rules”, Computerworld, November 21, 2006.  Computerworld’s survey determined that only 32% of IT managers stated their company was prepared for the new rules.  Some companies in the survey were not even aware that the new rules existed.

SUMMARY OF THE NEW FRCPs

Below is a brief overview of certain revisions to the FRCP addressing “electronically stored information.”
1.    FRCP 16(b).  Allows the court to enter a scheduling order that addresses “provisions for disclosure or discovery of electronically stored information”.
2.    FRCP 26(a).  Parties to litigation must disclose “a copy of, or a description by category and location of, all . . . electronically stored information”.
3.    FRCP 26(b)(2)(B):  In relevant part, the rule states: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.  On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.  If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause . . .”
4.    FRCP 26(f).  The parties to litigation must confer regarding the litigation and address multiple issues, including “any issues relating to disclosure or discovery of electronically store information, including the form or forms in which it should be produced”.
5.    FRCP 33(d).  In answering interrogatory questions, a party has the option to produce business records and specify in sufficient detail the location of the answer within the business records.  Under the revised rule, business records may inarticle in Computerworld, “few corporations are prepared for the new federal rules” on electronic discovery.  Fisher, Sharon, “Survey: Companies not prepared for new e-discovery rules”, Computerworld, November 21, 2006.  Computerworld’s survey determined that only 32% of IT managers stated their company was prepared for the new rules.  Some companies in the survey were not even aware that the new rules existed.

SUMMARY OF THE NEW FRCPs

Below is a brief overview of certain revisions to the FRCP addressing “electronically stored information.”
1.    FRCP 16(b).  Allows the court to enter a scheduling order that addresses “provisions for disclosure or discovery of electronically stored information”.
2.    FRCP 26(a).  Parties to litigation must disclose “a copy of, or a description by category and location of, all . . . electronically stored information”.
3.    FRCP 26(b)(2)(B):  In relevant part, the rule states: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.  On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.  If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause . . .”
4.    FRCP 26(f).  The parties to litigation must confer regarding the litigation and address multiple issues, including “any issues relating to disclosure or discovery of electronically store information, including the form or forms in which it should be produced”.
5.    FRCP 33(d).  In answering interrogatory questions, a party has the option to produce business records and specify in sufficient detail the location of the answer within the business records.  Under the revised rule, business records may include “electronically stored information”.
6.    FRCP 34.  In discovery, a party may request the opposing party to produce documents for inspection or photocopying.  The revised rule includes “electronically stored information” within the scope of this rule.  In relevant part, the rule states: “Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information . . .which are in the possession, custody or control of the party upon whom the request is served”.
FRCP 37(f).  If a party fails or refuses to permit discovery, the party may be subject to sanctions.
FRCP 45.  During litigation, a party may serve a subpoena under this rule to seek testimony or production of information from a person or entity that is not a party to the litigation.  The revised rule provides that the subpoena may “specify the form or forms in which electronically stored information is to be produced.”  If the subpoena does not specify the form for producing electronically stored information “a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.”

*This article is for informational purposes only and merely reflects the opinion of its authors.  It is not intended nor should it be used as a substitute for specific legal advice or opinions.  Legal counsel may be given only in response to inquiries regarding particular factual situations.  Dunn & Sheldrick © 2007

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