Patrick Kennedy, Chamberlain Hrdlicka

When the Federal Rules of Civil Procedure were updated in the late 2000s, the framers created a new category of information called ESI. Thanks to movies like “You've Got Mail,” the E in that acronym became almost synonymous with one thing: email. Fast forward to 2019 and what the E in ESI really stands for has expanded exponentially.

ESI means electronically stored information and as such encompasses so much more than just an Outlook folder. When we translate that E into litigation discovery, we have to cast a much wider net to be sure that all relevant information is captured and reviewed. Doing that can be a large and complex endeavor, which can be broken down into another acronym to help legal teams ensure they've done a thorough job for their client: ILC. Identify, locate, capture.

Identify

ESI is trickier now than it used to be. Instead of an email server or two, we have a host of other types of electronic information to sift through. Critical information can be stored in Word documents, spreadsheets, PowerPoint files and even pictures. Sometimes, the so-called smoking gun “document” isn't a document at all. It may well be a picture of a document taken with a smartphone. Have you ever attended a WebEx or GoToMeeting or Zoom conference call?If that call was recorded, there is an electronic file somewhere that contains information about who attended the call, anything that was typed into a chat window during the call and any information that was shared on a screen. It's information that needs to be identified.

Electronic information can come in the form of a database file. Think about accounting software. Legal teams are aware of bank accounts associated with a business and know to request bank statements. But what about QuickBooks, or other invoicing and money management software? Those products have database files behind them, and they store electronic information that could be critical to the success of a case. Likewise, many industries use proprietary software to track projects. The construction industry is one where each project and associated files and communications are stored in a database that needs to be identified before trial.

Locate

If the first step in the e-discovery process is to identify what kind of information your client could possibly have that could be relevant, and what the opposing side could be using, then locating ESI is the next challenge. No longer are we dealing with a single email server or a local file share network drive. There are a virtually unlimited number of devices where electronic information can be stored. Phones, thumb/jump/USB drives, iPads, laptops, desktops, cameras, etc. Printers can capture information that gets saved to an internal hard drive, for instance. Long after a document is printed onto paper, information about it is saved to the printer itself, making it a device that may require investigating in order to locate all relevant information. Taking a proper inventory of each custodian's devices, as well as shared company devices is critical to finding all of the electronic data that could potentially be relevant.

Complicating things is that those locations need not be physical computers or servers in your client or opposing party's offices. The rise of cloud computing means that electronically stored information could be anywhere in the interverse (internet universe). Do any of the custodians have an Amazon Prime account? Do they store work-related information (files, pictures, recordings) on their associated Amazon Drive? What about a Box.com or DropBox.com account? Those are the kinds of questions that counsel should be asking when trying to locate ESI.

Capture

Finally, once ESI has been identified and located, it has to be captured. Because of the way computers move information in electronic format, it has to be handled in such a way that critical information is not compromised. Metadata, which simply translates to “data about your data,” can easily be changed or updated if precautions aren't taken when handling the collection of all ESI. Metadata includes information like the date a file was created, who created it, where it was saved, etc. If that is not properly guarded during the capture phase, key information may be lost.

The most defensible method of capturing ESI is to use software that preserves this metadata so that timelines can be established before and during trial. Additionally, who captures the information is important. Rarely is it advisable to have custodians or corporate IT departments capture their own information. There's the obvious issue of, let's be honest, “corporate loyalty” that prevents internal staff from gathering all of the information in an effort to protect their company. Couple that with a lack of understanding about preserving metadata, and it's simply not wise to have the fox grab the eggs from the henhouse. There are vendors that can capture ESI such that nothing is disturbed and the true content can be sifted through for relevancy.

Once ESI has been Identified and Located, capturing it has to be done thoroughly and defensibly to ensure the best possible body of data to review prior to trial.

Wide angle shots of war rooms full of boxes, stacks of folders on a conference room table, and a team of lawyers flipping through blue-backed pads of documents with a highlighter in hand are nostalgic and familiar. That's just not how it's done anymore, no matter how simple and quaint those images are. Legal teams need to understand what ESI is, how to find it, and how to get it so that attorneys can review and understand the facts of the case. Using the ILC acronym can help remind these teams of the process and ensure that none of the steps are missed!

Patrick Kennedy is the director of e-discovery for Chamberlain Hrdlicka, a multi-discipline law firm with offices in Philadelphia, Atlanta, Houston and San Antonio. Contact him at [email protected].