(1) voice-mail messages and files, (2) e-mail messages and attachments, (3) deleted files, programs, or e-mails, (4) data files, (5) program files, (6) backup and archival tapes, (7) temporary files, (8) system-history files, (9) website infor- mation stored in textual, graphical, or audio format, (10) website log files, (11) cache files, and (12) cookies.
While we used to create paper one page at a time on
a typewriter, ESI multiplies like rabbits. There are copies stored electronically each time we change a document, each time we send it to someone else, and each time they send it back.
ESI is everywhere these days. It can be stored in a wide variety of devices, e.g., desktop computers (office, home), laptops (office, home), cell phones, network servers, disk drives, thumb/flash drives, photocopy machines with digital memory, and backup tapes. And, still more devices continually come into the marketplace. ESI can reside in all of these devices, and when it comes to preserving ESI for possible future production, we have to gather up all of these devices in order to gather up all of the ESI they contain.
Thus, we can define electronic discovery (e-Discov- ery) as encompassing the duties and processes of collecting, preparing, reviewing and producing discoverable informa- tion that is stored electronically.
So the answer to the first question—why must attor- neys know about ESI—has two parts: (1) ESI is the likely source of the evidence attorneys will present at trial, and (2) we now have rules governing e-Discovery. While the rules for discovery in general are well-established, the rules for e-Discovery are relatively new, if not brand new:
•
Effective December 1, 2006, the Fed-
eral Rules of Civil Procedure (FRCP) were amended to cover ESI. In the FRCP, ESI is broadly intended to cover all current and future media for storing information electronically.
• Effective June 29, 2009, Califor-
nia’s Electronic Discovery Act amended §2031.010 et. seq. and other provisions of the Code of Civil Procedure to provide rules for the discovery of ESI. The Cali- fornia rules generally follow the FRCP.
• Effective August 14, 2009, Rule
3.724 of the California Rules of Court was amended to add subdivision (8), which re- quires attorneys on both sides of every law- suit to discuss “any issues relating to the discovery of” ESI in a “meet and confer” pre- ceding the Case Management Conference.
Although the rules are less than five
years old, e-Discovery has quickly become a multi-billion dollar industry, and there has been sufficient time for “best practices” guidelines to be established. Best practices, recommendations and principles have been promulgated by The Sedona Conference. Courts often cite the Sedona Principles as a leading “industry” authority on e-Discovery.
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