Electronically Stored Information (ESI): Where You Should Look For It

Author: Jeff Dreiling

ESI or Electronically Stored Information is a big deal these days. It’s reinventing how we litigate and the pre-trial and discovery process that leads up to it. It can be overwhelming. What information do you need to collect? Where do you start? And how far do you have to go? Let’s take a look.

Where should I be looking for ESI? 

The question is simple and complicated at the same time. On its surface, the answer may appear to be email and the “My Documents” folder of a computer, but when applied in a real-world situation, it gets much more complicated.

We recently engaged with a client on a case with a simple enough premise: “Can you help me collect and search though the contents of my client’s phone and email?”

However, after reviewing the ESI/Production Order, we had to reevaluate the initial plan.

In order to be compliant with the Production Order, we had to go deeper than just phone and email – we needed to consider all potential sources of ESI including file shares on networks, social media history, iPad and cloud based documents from storage.

We started with a thorough interview of the key custodian that focused on some basic questions:

  • What devices do you use in the normal course of business?
  • What locations do you save documents to?
  • Are there any social media platforms you use for business?
  • How long have you had your current cell phone?
  • Who else at your office worked on this project?
  • And so on…

By the end of our interview and after a long whiteboard session with the custodian’s counsel, we set out to preserve and collect data from a total of 9 sources. The question of “Can you help me collect and search through the contents of my client’s phone and email?” had turned into collecting:

  • 2 iPhones
  • 1 Android
  • 1 iPad
  • 3 email accounts
  • 2 Drobox accounts
  • And restoring a file share from a server that had been recently mothballed

For the litigators reading this with a now increased heart rate, there is good news.

By performing highly targeted collections, utilizing previously agreed to date parameters and search terms as well as applying some basic technology assisted review, the end result was a dataset of manageable proportion.

The increase in the number of data sources and overall data volume was offset (time- and cost-wise) by the corresponding increases in collection software efficiencies and the utilization of technology that assists in the identification of potentially relevant data.

In the end, the level of compliance with the order was much higher and the total cost of the project was actually less than if we had honored the initial request.

This was achieved by taking the time to ask questions, become informed on the specific case, educate our customer and most importantly, partner with the client instead of simply following an initial order. It sounds simple but most litigators have a long list of examples where that did not happen. Being thorough and complete in discovery doesn’t always mean spending huge sums of money and wasting tons of time.

If you are looking for more specifics on exactly how this was achieved, check back for follow up posts that will take a deeper dive into both ESI/Production Orders and Technology Assisted Review.

Examples like this is why we ask for our clients to come to us with their most difficult discovery challenges. We are here to help our customers understand their options and to assist in making a decision on a path forward before we begin executing. Our goal is to make your case run more smoothly and allow you to stay focused on the big picture.

Jeff Dreiling EDiscovery Trial Consultant, Kansas City
2018-02-13T21:37:09+00:00 Discovery, Pre-Discovery|