Most e-discovery requests involve computer data such as emails, documents, and photographs. But courts are increasingly confronted with requests from parties seeking “ephemeral” data data that is automatically created by a computer system without the conscious knowledge of the user, and is usually temporary. Such data (also known as electronically stored information, or ESI) would include things like Internet browser histories, or metadata that’s updated automatically, like “last opened” dates and “file created” dates.
This type of evidence, which can sometimes make or break a case, is fragile and can be difficult to preserve and collect. Two recent suits highlight the perils and costs for parties involved in ephemeral data cases: Nacco Materials Handling Group, Inc. v. Lilly Company and Tener v. Cremer.
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