Facing a Certain Truth: E-Discovery Duties and the Range of
Sanctions for Failures to Comply By Nick Brestoff, M.S., J.D.
Why is it
that every litiga- tor must become
conversant with the language and intricacies of electronically stored information (ESI)? And why is it that they should feel highly motivated to do so in a non-negligent man- ner? This article addresses these questions.
course, that the discovery of potentially relevant evidence is a standard part of every lawsuit. But what is new is that, within the last five years, it has been recognized that ESI comprises most of all potentially rel- evant evidence.
Attorneys
It has been noted that even the smallest fender- benders can involve ESI; for example, if the driver was texting just before the crash. In such
a case, the amount of ESI might be be relatively small, but then again, the existence and timing of the texting might be critical. In anti-trust, securities, fraud, mass tort or employment class actions, and in trade secret and patent cases, the amount of ESI is different and can, in fact, be prodigious.
Indeed, the hallmark of ESI is its immense volume. The larger cases can involve terabytes of ESI. For context, a megabyte is about 75 pages; a gigabyte is about 75,000 pages, if printed. A terabyte is a thousand times more than a gigabyte, which means 75 Million pages, which is 25,000 boxes, and that’s the equivalent of about 50,000 trees.
Why is there so much of it? The answer is simple. In 2003, researchers at UC Berkeley published an
update to their study, How Much Information? They explained that, at in 2002, each of us produced almost 800 megabytes of recorded information each year. There is no doubt that each of us produces even more ESI today. Because the cost of storing information electronically is cheap, ESI now goes by many names:
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