Considering ESI? Definitions, Questions, and Notes.


By Rob Robinson


With the introduction of the December 2006 update to the Federal Rules of Civil Procedure (FRCP), legal professionals were definitely made aware of the “arrival” of the digital age in Federal Court. The amendments to FRCP Rule 26 in this December 2006 update highlight this “arrival” as they spell out - among other things: 

• mandate for involved parties to have early meet-and-confer sessions to discuss and hopefully agree on the handling of electronically stored information,  
• guidance to involved parties as to whether ESI may be considered accessible or not-reasonably-accessible.

In order to comply with this mandate and guidance, it’s important for involved parties to have a solid understanding of digital data so they can both plan thoroughly for meet-and-confer sessions and so they can ask the right questions when determining or questioning the accessibility of ESI.   This short aggregation of information presented primarily in checklist/consideration form was prepared with the goal of enhancing my own understanding of digital data.  Organized with definitions and questions for your consideration, my hope is that you may find portions of this useful as you consider cases involving ESI. 

What’s The Difference? Three Important And Interrelated Definitions

What Is Electronically Stored Information?

While not specifically defined in the FRCP, electronically stored information, or ESI, is defined in the November 2006 issue of The Third Branch (Newsletter of the Federal Courts) simply as “…all information in computers”.

What Is Information?

From a technology perspective, information is defined as the summarization of data. Technically, data are raw facts and figures that are processed into information, such as summaries and totals. But since information can also be the raw data for the next job or person, the two terms cannot be precisely defined, and both are used interchangeably.

What Is Data?

• Factual information, especially information organized for analysis or used to reason or make decisions.
• Computer Science. Numerical or other information represented in a form suitable for processing by computer.

Should I Give Them The “Twelfth” Degree? 12 Planning Considerations For ESI

Based on the interchangeability of definitions, ESI may be referenced as “data” in remainder of this post.

Data Considerations In Preparing For Cases Involving ESI

1. What Is The Scope Of The Data In Question?
2. What Is The Structure Of The Data?
3. What Is The Format Of The Data?
4. What Is The State Of The Data?
5. How Does One “Connect” To The Data?
6. How Does One Get To Active State Data?
7. How Does One Maintain The Static State Data?
8. How Much Data Will Be Acted Upon?
9. Is The Data Encrypted?
10. What Capabilities Will Be Needed To Display Information?
11. How Will Data Reports And/Or Files Be Provided To Requestor?
12. How Will The Data Be Stored After Being Acted Upon?

In going through these twelve questions and the corresponding notes provided below, one should be able to construct a planning framework from which to consider case specific ESI.

For the complete article on iPaper, click here.