Protecting your assets: Your Electronic Information may be Used For/Against you in a Court of Law

by Louellen Coker on June 12, 2008

Let’s face it, electronic media-computers, cell phones, instant messaging, and more- has made our lives much more productive and have facilitated communication and collaboration. The information contained in those devices has spawned a new facet in the legal profession that is rapidly growing.

Electronic discovery extends further than e-mail, word processing documents, and spreadsheets. In December 2006, the Federal Rules of Civil Procedures were amended to define what constitutes electronically stored information (ESI). The definition is provided in Rule 34(a):

writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations-stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.

But what does that mean in layman’s terms? What really constitutes ESI? Clarifying what constitutes ESI, the courts have found that a variety of electronic data is in fact ESI:

  • instant messaging
  • cell phone images
  • voice mail
  • metadata (data that describes other documents) (see my previous post about metadata)
  • information stored in RAM
  • deleted files
  • backup tapes
  • other sources: personal digital assistants, flash drives, Web pages, computer databases and MP3 players

As you can see, ESI permeates all aspects of your business (and even your personal life), presenting a wide range of issues for whoever manages your records. And as legal disputes increasingly involve e-evidence, you’ll want to be able to find your ESI when you need it.

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