A multi-part series on the essentials practitioners need to know about ESI collections
In the first Part, we discussed lawyers’ duty of technology competence and the importance of understanding collection to fulfilling that duty. In this, the second Part, we review the potential legal and technological scope of collection.
The practical scope of ESI collection is determined both by the actual requests from other parties and by your own information needs related to the matter. The maximum-possible scope is established by the Federal Rules of Civil Procedure (FRCP) or your state’s equivalent ruleset. The FRCP establishes that scope as encompassing:
The first three criteria set a very broad potential scope for discovery collection. The definition of “documents or electronically stored information” provided by FRCP 34 and its accompanying committee notes is expansive enough to encompass almost any sort of material in any format. “[P]ossession, custody, or control” means that you are responsible, not just for the materials you physically or electronically possess, but for any that you legally control (or, potentially, that you have the practical ability to obtain). “Relevant” is also defined broadly, by Federal Rule of Evidence 401, which states that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.”
The last three criteria set some reasonable, fact-specific limits on that very broad scope. Uniqueness as a limiter comes from the inherently duplicative nature of ESI and from FRCP 26(b)(2)(C)(i)’s admonition that discovery not be “unreasonably cumulative or duplicative.” The recognition that some ESI may not need to be produced because it is “not reasonably accessible because of undue burden or cost” comes from FRCP 26(b)(2)(B) (e.g., older data from legacy systems). And, the requirement that all discovery be “proportional to the needs of the case” comes from the recently amended definition of the discovery scope itself in FRCP 26(b)(1).
Technologically, this scope means that nothing can be overlooked based purely on its file format or its source type. If it falls within the legal scope described above, you may need to collect it to satisfy a party’s request or your own information needs, regardless of whether it comes from:
Collection is not necessarily limited to these common sources either. When the circumstances have warranted it, collection has been necessary from uncommon sources such as vehicle data systems, wearable fitness trackers, and even ephemeral data (i.e., data generated and stored in memory only temporarily as part of a computer system’s normal operation). As more and more devices are rendered “smart” and internet-connected, the list of potential sources will continue to grow. For example, photocopiers are now almost all networked computers with internal hard drives that store potentially-discoverable copies of the documents they’ve handled.
Upcoming in this Series
In the next Part of this series, we will review how electronically-stored information is actually stored in, and recovered from, computer memory.