Electronically Stored Information

Electronically Stored Information (ESI) refers to any data that is created, stored, or utilized in electronic form. Parties in a legal case must discuss how they will handle ESI early in the process, can object to producing information from sources that are not easily accessible, and must ensure that any ESI produced is in a format that is usable. Additionally, if a party inadvertently discloses privileged information while taking reasonable precautions, they may not lose that privilege.

In a civil lawsuit, Party A requests emails from Party B's old server, which Party B claims is not reasonably accessible due to the cost and effort required to retrieve the data. Party B objects to the request, citing the burden of accessing the information, and offers to produce emails from a more accessible source instead. The court agrees with Party B, allowing them to limit production to the more accessible emails.

ESI: Early talk, good form, and privilege protection!

Exams may present scenarios where students overlook the requirement for early discussion about ESI or misinterpret what constitutes 'not-reasonably-accessible' sources. Students might also confuse the protections against privilege waiver with other evidentiary rules.

Questions often test students on the procedural aspects of ESI handling, including the timing of discussions and the implications of privilege waivers, typically presenting fact patterns that require careful analysis of accessibility and usability.