Federal and state discovery rules rarely limit their application to certain types of electronic data. Rather, they apply broadly to all forms of “electronically stored information.” ESI encompasses documents themselves — and information about the documents, the metadata — but also computer code, and information that the computer retains to allow for a better user experience. Increasingly courts are confronted with situations where parties seek access to a computer’s slack or unallocated space; temporary Internet files; metadata that is updated automatically (such as last-opened dates); and other ephemeral data that require extraordinary measures to preserve and collect.

This information is often highly relevant to a party’s claims and defenses — indeed a case may be won or lost based on this type of electronic evidence. However this evidence is fragile and difficult to collect and preserve. Preservation, collection, and processing of this data frequently requires specialists in computer forensics, which can greatly increase litigation costs. Nonetheless, courts have declined to draw distinctions between requests for electronic documents and requests for data evidencing Internet-based activity. These cases have applied the prevailing Zubalake framework with respect to when the duty to preserve evidence is triggered and the accessibility of the evidence sought.

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